Digital Commons Network^™

Homeland Security, Pesticide Regulation And Common Household Chemicals: Are We Adequately Protecting All Our Sources, Leticia M. Diaz

Faculty Scholarship

In the aftermath of the terrorist attacks of September 11, 2001, legislators, business owners, consumers and everyday citizens, all with a view of how to protect our interests, voiced their opinions on how to improve national security with patriotic zest. FIFRA's main purpose is to ensure federal regulation of pesticide distribution and use. This power is of particular importance given the terroristic threat of possible chemical warfare. Chemical professionals were cognizant of the importance of site security even prior to the September 11th terrorist attacks. With respect to the risk of terrorist attacks using pesticides or other chemical agents, EPA …

Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer

Faculty Scholarship

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it …

Market Principles For Pesticides, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Overall, pesticide use is growing in developing countries. United States' pesticide use changed in content, but remains substantial in volume. Critics of pesticide policy, including many of the speakers at this symposium, are concerned that pesticide problems are worsening. Surprisingly, thirty years after the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") reforms and the victory over DDT, the critics are not yet prepared to declare victory. Even worse from the perspective of environmental pressure groups is the change in attitude toward DDT, a substance whose name invokes extraordinary invective, where the current picture is not quite what the advocacy groups …

The Right To Health And The Nevirapine Case In South Africa, George J. Annas

Faculty Scholarship

Thanks to activists in South Africa, the right to health as a human right has returned to the international stage, just as it was being displaced by economists who see health through the prism of a globalized economy and by politicians who see it as an issue of national security or charity. The current post-apartheid debate in South Africa is not about race but about health, and in this context, the court victory by AIDS activists in the nevirapine case has been termed not only, as stated in one British newspaper, “the greatest defeat for [President Thabo] Mbeki's government” but …

Proposals To Expel Palestinians From The Occupied Territories As Catalyst For A Civil Adjudication Campaign, Catherine A. Rogers

Faculty Scholarship

I begin in Part II with a brief sketch of the history of stated policies to expel Palestinians from what is now Israel and the Occupied Territories, and then examine recent proposals that have been made and actions that have been taken to implement modern re-articulations of those historic policies. In Part III, I then review the grounds on which international law proscribes mass expulsions of indigenous and occupied peoples. While international law governing this issue is clear in its application and has been overwhelmingly endorsed by the larger international community, international law seems to have little influence on Israel's …

Gender, Work, And The Nafta Labor Side Agreement, Kate Andrias

Faculty Scholarship

It has been nearly ten years since the public debate over the North American Free Trade Agreement ("NAFTA") and the advent of trade liberalization with America's neighbors to the north and south. In the years since NAFTA's signing in 1993, economic globalization has fundamentally changed our conception of the nation-state, citizenship, trade, and work. Economic life in the United States now involves massive cross-border capital and labor flows, and integrated cross-border production chains, particularly with our trading partners in NAFTA. We have seen greater trade liberalization throughout the world, the ascendance of transnational organizations like the World Trade Organization, recurrent …

Searching For A Sense Of Control: The Challenge Presented By Community Conflicts Over Concentrated Animal Feeding Operations, Nancy A. Welsh, Barbara Gray

Faculty Scholarship

The growth in the number of concentrated animal feeding operations ("CAFOs"), particularly those involved in swine production, has brought with it increased community concern and outright conflict in many communities across the United States.' Most commentators have focused upon anticipated outcomes to explain the contentiousness of CAFO-related disputes.2 Meanwhile, even though the social dynamics that contribute to the development and escalation of conflicts over CAFOs parallel those exhibited in other kinds of community conflicts, little research has systematically examined the social dynamics associated with CAFO conflicts. One exception to this deficiency is recent work conducted by a team of researchers …

Property Rights, Pesticides, & (And) Public Health: Explaining The Paradox Of Modern Pesticide Policy, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

The lesson of DDT's rise and fall is that property rights play a critical role in checking public policy abuses. Respect for property rights requires public actors to obtain property owners' consent before they take actions (e.g. pesticide spraying) that affect the property owners. When property rights are respected, spillover impacts are minimized. Public policies imposed without consent, even if done with good intentions, may produce bad effects. Those effects may result in the policy being rightly abandoned, but may also spur other policies that produce more bad effects. Only by consistent respect for property rights, by both governments and …

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Faculty Scholarship

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

Judicial And Legislative Checks On Ex Parte Omb Influence Over Administrative Rulemaking, William D. Araiza

Faculty Scholarship

No abstract provided.

Serving The Homeless: Evaluating The Effectiveness Of Homeless Shelter Services, Robert L. Fischer

Faculty Scholarship

The effects of homeless assistance services at the local level are tremendously difficult to ascertain. In this study, a four-month sample of homeless persons served by a local homeless shelter and case management program were contacted nine to eleven months after receiving services. The findings suggest that the program had some initial success in assisting the homeless clients to locate housing within the first year after leaving the shelter. However, the housing costs paid by these formerly homeless were quite high, with nearly three-quarters of them spending forty percent or more of their income on housing.

Public International Law: Environmental Law, Gilbert M. Bankobeza, Susan Biniaz, Clare Breidenich, Melanne Andromecca Civic, Gabriel E. Eckstein, David Favre, Paul E. Hagen, Teresa Hobgood, Karissa Taylor Kovner, Gregory F. Maggio, Howard Mann, Darlene A. Pearson, Margaret F. Spring, Katherine E. Mills, David W. Wagner, John Barlow Weiner

Faculty Scholarship

Noteworthy international activity relating to the environment occurred in a wide variety of fora in 2000. This chapter provides brief updates on some of the most significant developments. Though by no means a comprehensive review, the chapter reflects the wide sweep of issues and large number of entities now involved in the development of international environmental law, at the start of this new century. It also reflects how critical and complex this international work is, and how much remains to be done.

The Land Crisis In Zimbabwe: Getting Beyond The Myopic Focus Upon Black & White, Thomas W. Mitchell

Faculty Scholarship

This article deconstructs the role that race played in the land crisis in Zimbabwe that occurred in Zimbabwe in the late 1990s and earls 2000s. The article makes it clear that the government of Zimbabwe did not extend robust property rights to its black majority population for the most part even as it took land from large white landowners. This is revealing given that the government's primary justification for taking land from large white landowners was that the black majority unjustly owned little property in Zimbabwe as a result of colonialist and neocolonialist, discriminatory polices.

The Role Of Law In Russian Health Reform: Report To The United States Agency For International Development, Wendy K. Mariner, Frank G. Feeley

Faculty Scholarship

True reform necessarily entails new law. In the newly independent Russian Federation, law has played a formative role in efforts to reform the health care system. Both historically and structurally, the health care system in Russia is more dependent on legal authorization than that in most Western industrialized countries. Reforms that providers might institute independently elsewhere are not likely to happen in Russia without specific laws authorizing them. Policy makers often formulate the substance of policy in the context of developing legislation, instead of drafting legislation to codify settled policy decisions. Thus, identifying and developing suitable laws has become an …

Chevron's Domain, Thomas W. Merrill, Kristin E. Hickman

Faculty Scholarship

The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. dramatically expanded the circumstances in which courts must defer to agency interpretations of statutes. The idea that deference on questions of law is sometimes required was not new. Prior to Chevron, however, courts were said to have such a duty only when Congress expressly delegates authority to an agency "to define a statutory term or prescribe a method of executing a statutory provision.^" Outside this narrow context, whether courts would defer to an agency's legal interpretation depended upon multiple factors that courts evaluated in …

Publication Rules In The Rulemaking Spectrum: Assuring Proper Respect For An Essential Element, Peter L. Strauss

Faculty Scholarship

Imagine a visitor who seeks to catalog the variety of written texts American government uses to communicate its powers and its citizens' rights and obligations. She might organize those texts into the following pyramid:

• A Constitution, adopted by "the people"

• Hundreds of statutes, adopted by an elected Congress

• Thousands of regulations, adopted by politically responsible executive officials

• Tens of thousands of interpretations and other guidance documents, issued by responsible bureaus

• Countless advice letters, press releases, and other statements of understanding, generated by individual bureaucrats

On inquiry she would find that we understand passably well the …

The Limits Of Law At The Limits Of Life: Lessons From Cannibalism, Euthanasia, Abortion, And The Court-Ordered Killing Of One Conjoined Twin To Save The Other, George J. Annas

Faculty Scholarship

The subject is law at the beginning and end of life. Most of my work is in the area of general health law: law and medicine, public health law, and health and human rights. But this is my favorite subject area, and I expect you to ask me the hardest questions you can. I am not saying I can answer them, but if I cannot that is my fault, not yours. I am going to make a pretty broad argument today about law and medicine; specifically about how new medical technology and medical practice standards have eclipsed religion (and sometimes …

Conjoined Twins: The Limits Of Law At The Limits Of Life, George J. Annas

Faculty Scholarship

Conjoined twins have been the subject of scientific exhibits, medical study, human curiosity, and even entertainment, but until the year 2000, conjoined twins had never been the subject of a courtroom battle. A unique case that was the subject of two British court decisions deserves study.1 The case illustrates the difficulty of applying legal principles to unprecedented life-and-death decisions involving proposed medical interventions for children — particularly when parents and physicians disagree about what should be done.

Hormone Replacement Therapy, Or Just Eat More Meat: The Technological Hare Vs. The Regulatory Tortoise, Leticia M. Diaz

Faculty Scholarship

Is meat with its high fat content the real culprit, or is it the FDA-approved growth hormones, the same hormones that have been rejected in Europe, that should bear the blame? Why is eating less meat associated with a lower incidence of many types of cancer? Could it be chemical overload? American women are about five times more likely to develop breast cancer than are women in less developed countries.

The Challenges Of Globally Accessible Process, Peter L. Strauss

Faculty Scholarship

This chapter embraces the strategic use of the Internet for achieving new forms of transparency and participation in the regulatory cooperation process. It explores ‘the challenges of globally accessible process’ through the use of new information technologies. It holds that the incorporation of these technologies in agency processes at the US federal level has created possibilities for the most transparent, participatory, and broadly deliberative regulatory system in the world to become still more so. The Internet promises not merely to expand access to information about the substance and process of regulation, but also to ‘move the government closer to the …

Foreword To Amicus Brief On The Status Of Palestinian Refugees Under International Refugee Law, Guy Goodwin-Gill, Susan M. Akram

Faculty Scholarship

Palestinian refugees have a status that is unique under international refugee law. Unlike any other group or category of refugees in the world, Palestinians are singled out for exceptional treatment in the major international legal instruments which govern the rights and obligations of states towards refugees: the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol; the Statute of the United Nations High Commissioner for Refugees; and, specifically with regard to the Palestinians, the Regulations governing the mandate of the United Nations Relief and Works Agency for Palestinian Refugees in the Near East. Almost all states …

The Legal Construction Of Adolescence, Elizabeth S. Scott

Faculty Scholarship

American lawmakers have had relatively clear images of childhood and adulthood-images that fit with our conventional notions. Children are innocent beings, who are dependent, vulnerable, and incapable of making competent decisions. Several aspects of the legal regulation of childhood are based on this account. Children are assumed not to be accountable for their choices or for their behavior, an assumption that is reflected in legal policy toward their criminal conduct. They are also assumed to be unable to exercise the rights and privileges that adults enjoy, and thus are not permitted to vote, drive, or make their own medical decisions. …

Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming

Faculty Scholarship

I want to begin by frankly acknowledging that the group of scholars participating in the conference is more conservative than the crowd with whom I usually travel. Accordingly, at the outset, I want to say something ingratiating. Then, I will say something provocative. Here is the ingratiating part: economic liberties and property rights, like personal liberties, are fundamental rights secured by our Constitution. In fact, economic liberties and property rights are so fundamental in our constitutional scheme, and so sacred in our constitutional culture, that there is neither need nor good argument for aggressive judicial protection of them. Rather, such …

Diseases Of Meaning, Manifestations Of Health, And Metaphor, Peter J. Whitehouse

Faculty Scholarship

Disease and health are commonly thought of as distinct opposites. We propose a different view in which both may be seen to be facets of healthy functioning, each necessary for the other, each giving rise to the other. Thus, disease may be thought of as a manifestation of health. It is the healthy response of an organism striving to maintain physical, psychologic, and spiritual equilibrium. Disease is not necessarily to be avoided, blocked, or suppressed. Rather, it should be understood to be a process of transformation. The process should therefore be facilitated because it is an integral part of the …

Marine Natural Products., Shirley A. Pomponi, Amy E. Wright, John K. Reed, Peter J. Mccarthy

Faculty Scholarship

The marine environment has proven to be a rich source of both biological and chemical diversity and has, therefore, become the focus of a major research effort in natural products drug discovery.

Modes Of Regulatory Enforcement And The Problem Of Administrative Discretion, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Reinventing Environmental Regulation: Back To The Past By Way Of The Future, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Single-Parent Latinas On The Margin: Seeking A Room With A View, Meals, And Built-In Community, Laura M. Padilla

Faculty Scholarship

This article considers the unique challenges of single parent Latinas and and a different way of viewing concerns of single parents. This alternative paradigm uses a holistic approach to the problems I had been pondering, acknowledging their interconnectedness, rather than artificially segmenting them into disjointed issues. I visualized a multi-pronged approach to Latina mothers' many concerns, based on a cohousing model, as modified for the needs of a low-income, racially distinct population of single-parent Latinas. It describes co-housing and proposes that this housing model be more broadly accessible through land use changes and greater acceptance of housing beyond single family …

Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt

Faculty Scholarship

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. …