Digital Commons Network^™

Medicine And Public Health: Crossing Legal Boundaries, Wendy K. Mariner

Faculty Scholarship

In 2006, New York City began a mandatory reporting system for laboratories to submit blood sugar (A1c) test results (primarily for diabetes) to the city's Department of Health and Mental Hygiene without the patient's consent. This article examines whether this new program is an innovative way to improve New Yorkers' health, an invasion of medical privacy, or usurpation of the physician's role. The registry is an example of public health initiatives in chronic diseases, which challenge the limits of laws governing medicine care and public health programs by blurring the historical boundaries between them.

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle K. Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher's strict liability standard as undermining economic development, American courts and …

Property Rules, Liability Rules, And Immunity: An Application To Cyberspace, Keith N. Hylton

Faculty Scholarship

This Article sets out a theory of torts and cyberspace wrongs. My goal is to provide a sparse theoretical account of tort law and apply it to cyberspace torts, both negligent and intentional. I approach this goal by applying the framework of property rules and liability rules to cyberspace torts. That framework suggests that trespass doctrine is appropriate in instances of cyber invasions of private information resources, such as the breaking of codes to access private information on the web. However, trespass doctrine should play no role in cyber-invasions of public information resources, such as the sending of spam email. …

Cancer And The Constitution: Choice At Life's End, George J. Annas

Faculty Scholarship

J. M. Coetzee's violent, anti-apartheid Age of Iron, a novel the Wall Street Journal termed “a fierce pageant of modern South Africa,” is written as a letter by a retired classics professor, Mrs. Curren, to her daughter, who lives in the United States. Mrs. Curren is dying of cancer, and her daughter advises her to come to the United States for treatment. She replies, “I can't afford to die in America. . . . No one can, except Americans.” Dying of cancer has been considered a “hard death” for at least a century, unproven and even quack remedies have been …

Tort Negligence, Cost-Benefit Analysis, And Tradeoffs: A Closer Look At The Controversy, Kenneth Simons

Faculty Scholarship

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution …

Biomedical Ethics And The Law: A Critical Perspective, Keith N. Hylton

Faculty Scholarship

Health law, a fast growing field of scholarship, appears to consist largely of two schools. One focuses on health care antitrust, taking as its fundamental premise the notion that health care markets should be distinguished from and treated differently than other markets. This premise underlying health care antitrust is based on a few recurring features of health care markets, such as informational asymmetry, that are taken as sufficient bases for treating them differently.¹ The other school of health law is biomedical ethics, which has taken on increasing importance in view of the many tradeoffs that arise when health care …

The Bush Administration's Terrorist Surveillance Program And The Fourth Amendment's Warrant Requirement: Lessons From Justice Powell And The Keith Case, Tracey D. Maclin

Faculty Scholarship

This article was written for a symposium issue of the University of California at Davis Law Review on the fortieth anniversary of Katz v. United States. The article analyzes the Bush Administration's claim that the President has the authority to order warrant less electronic surveillance of communications between American citizens and persons abroad suspected of having connections with foreign terrorists groups. When evaluating this claim, my article focuses on a case that could be characterized as more constitutionally robust and stronger Katz. That case is United States v. United States District Court, also known as Keith. The Keith ruling held …

Tackling The "Evils" Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld

Faculty Scholarship

Though they are sometimes regarded as corrupt, the complete cessation of existing interlocking boards in healthcare nonprofits is not immediately attainable and arguably not always desirable. This article comments that the doctrine of fiduciary duties should be modified to encompass the reality of overlapping boards; to recognize the trend toward more global, comprehensive, and proactive governance in the healthcare sector; and to enable directors to decipher, document, and resolve conflicts at a more meaningful point in their decision-making processes by expanding the doctrine of the duty of obedience.

To facilitate the discussion, the article draws on three examples of overlap …

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

Faculty Scholarship

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order ofthings. Corporate law is state law. Each corporation is formed under the law of its chosen state ofincorporation. To ensure consistency and predictability, that law must govern the corporation's internalaffairs. Yet the origin of such a doctrine is puzzling. Respecting the firm's choice of corporate law, thedoctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering the first account of the doctrine's …

Antitrust Around The World: An Empirical Analysis Of The Scope Of Competition Laws And Their Effects, Keith N. Hylton, Fei Deng

Faculty Scholarship

Since the early studies of Arnold Harberger,' George Stigler,² and Richard Posner,³ there has been a growing movement calling for the use of empirical evidence to judge the effectiveness of antitrust law in securing its goals.⁴ That there have been relatively few such studies is attributable to the lack of useful statistical information on the law, enforcement policies, and penalties.

In this article, we present an effort to use information on competition laws around the world to assess their scope and effectiveness. The foundation of this study is a dataset that codes key features of the competition …

Unpacking Backdating: Economic Analysis And Observations On The Stock Option Scandal, David I. Walker

Faculty Scholarship

The corporate stock option backdating scandal has dominated business page headlines since the summer of 2006. The SEC has launched investigations of more than one hundred companies with respect to the timing and pricing of stock options granted during the boom years of the late 1990s and early 2000s, and the number of firms caught up in the scandal continues to increase. This Article contributes to our understanding of the backdating phenomenon by analyzing the economics of backdating and the characteristics of the firms under investigation. Its main points are the following: First, given the high volatilities of the stocks …

Mr. Prinzo's Breakthrough And The Limits Of Confidentiality, Nancy J. Moore

Faculty Scholarship

Engaging students in the required Professional Responsibility course is not always easy. There are many ways we attempt to overcome this resistance, including bringing in current events, emphasizing remedies other than lawyer discipline, and making use of a number of currently available audio-visual aids, including clips from movies and television shows. In this article, the author describes her use of Mr. Prinzo's Breakthrough, an absurd, black humor short story by Bruce Jay Friedman, to teach the limits of the obligation of confidentiality.

The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, Robert D. Sloane

Faculty Scholarship

Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the …

Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa, Peggy Maisel

Faculty Scholarship

Scholars have devoted considerable attention and resources to creating and expanding legal aid clinics, law school clinics, and university-based law clinics in order to make the law school experience more educational and relevant for law students in developing countries by introducing more skills training into the curriculum. Those who support the expansion of clinical legal education in South Africa and elsewhere have sought to achieve specific objectives related to improving legal education for students and providing assistance to economically disadvantaged groups.

Legal education is enhanced when it reflects the realities of the citizens within a country, such as South Africa …

Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh

Faculty Scholarship

In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead …

Love, Marriage, And The Baby Carriage: Revisiting The Channelling Function Of Family Law, Linda C. Mcclain

Faculty Scholarship

This Article revisits a significant idea at the core of contemporary debates in family law: the channeling function of family law. This idea is that a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family law scholar Carl Schneider helpfully invited attention to this familiar idea in an essay published fifteen years ago. Challenges to the conventional sequence (expressed in the childhood rhyme) of love-marriage-baby carriage posed by changing social practices, rights claims made by various groups within society that lead to legislative change and …

Exchange Asymmetries Incorrectly Interpreted As Evidence Of Endowment Effect Theory And Prospect Theory?, Charles R. Plott, Kathryn Zeiler

Faculty Scholarship

Systematic asymmetries in exchange behavior have been widely interpreted as support for endowment effect theory, an application of prospect theory positing that loss aversion associated with ownership explains observed exchange asymmetries. We offer an alternative explanation. Specifically, we conjecture that observed asymmetries can be explained by procedure-driven theories grounded in classical preference theory. To test this alternative explanation, we alter the procedures to preserve the predictions of endowment effect theory while ruling out procedure-driven explanations grounded in classical preference theory. The data reject endowment effect theory in favor of procedure-driven theories.

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

Faculty Scholarship

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.

Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

Mostly Unconstitutional: The Case Against Precedent Revisited, Gary S. Lawson

Faculty Scholarship

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use of …

Prologue To A Voluntarist War Convention, Robert D. Sloane

Faculty Scholarship

This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse …

Grounding Trademark Law Through Trademark Use, Stacey Dogan

Faculty Scholarship

The debate over trademark use has become a hot-button issue in intellectual property (IP) law. In Confusion over Use: Contextualism in Trademark Law, Graeme Dinwoodie and Mark Janis characterize it as a dispute over whether to limit trademark holder rights in a new and unanticipated way. Yet there is another - in our view more historically accurate - way to frame the trademark use debate: the question is whether courts should, absent specific statutory authorization, allow trademark holders to assert a new and unprecedented form of trademark infringement claim. The pop-up and keyword cases involve attempts to impose third-party liability …

Will Longer Antimicrobial Patents Improve Global Public Health?, Kevin Outterson, Julie Balach Samora, Karen Keller-Cuda

Faculty Scholarship

The problem of antimicrobial resistance has led some infectious disease experts and their professional societies to propose the use of transferable intellectual property rights (wildcard patents) and patent term extensions as methods to encourage antimicrobial R&D. We evaluate recent approvals of new antimicrobial classes and find the number of new introductions is higher than previously suggested. More importantly, creating new patent rights is shown to be an inefficient and possibly counterproductive response to antimicrobial resistance. Wildcard patents would operate as a more than US$40 billion annual tax on heart disease, hypertension, chronic obstructive pulmonary disease, asthma, and depression to inefficiently …

Customary International Law And The Question Of Legitimacy, William S. Dodge

Faculty Scholarship

No abstract provided.

"Rum, Sodomy, And The Lash" What The Military Thrives On And How It Affects Legal Recruitment And Law Schools, Elizabeth L. Hillman, Sharra E. Greer, Warrington S. Parker Iii, Diane H. Mazur

Faculty Scholarship

No abstract provided.

Toward The "Tipping Point" Decision Aids And Informed Patient Choice, Jaime S. King, Annette M. O'Connor, John E. Wennberg, France Legare, Hilary A. Llewellyn-Thomas, Benjamin W. Moulton, Karen R. Sepucha, Andrea G. Sodano

Faculty Scholarship

No abstract provided.

Domain Names, Trademarks, And The First Amendment: Searching For Meaningful Boundaries, Margreth Barrett

Faculty Scholarship

No abstract provided.

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Links And Choices: Popular Legal Culture In The Work Of Lawrence M. Friedman, Jo Carrillo

Faculty Scholarship

No abstract provided.

Fiction, Form, And Substance In Subchapter K: Taxing Partnership Mergers, Divisions, And Incorporations, Heather M. Field

Faculty Scholarship

No abstract provided.

The Endangered Species Act: Reform Or Refutation?, Brian E. Gray

Faculty Scholarship

No abstract provided.