Digital Commons Network^™

The Growing Power Of Healthcare Ethics Committees Heightens Due Process Concerns, Thaddeus Mason Pope

Faculty Scholarship

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function.

HECs are typically multidisciplinary groups comprised of representatives from different departments of the healthcare facility: medicine, nursing, law, pastoral care, and social work, for example. HECs were established to support and advise patients, families, and caregivers as they work …

Just Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

The Structure Of Stockholder Litigation: When Do The Merits Matter, Minor Myers, Charles R. Korsmo

Faculty Scholarship

No abstract provided.

Redescribing Health Privacy: The Importance Of Information Policy, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Hidden Costs Of Health Care Cost-Cutting: Toward A Postneoliberal Health-Reform Agenda, Frank Pasquale

Faculty Scholarship

No abstract provided.

Panel Iii: The Future Of The Press And Privacy, Amy Gajda, Clay Calvert, Tom Bivins, Amy Sanders, Stephen Ward

Faculty Scholarship

No abstract provided.

Onlookers Tell An Extraordinary Entity What To Do, Anita Bernstein

Faculty Scholarship

No abstract provided.

Reason Giving And Rule Making In Procedural Law, Robin Effron

Faculty Scholarship

No abstract provided.

Optional Safety Devices: Delegating Design Responsibility To The Market, Aaron D. Twerski, James A. Henderson

Faculty Scholarship

No abstract provided.

After The Tiers: Windsor, Congressional Power To Enforce Equal Protection, And The Challenge Of Pointillist Constitutionalism, William D. Araiza

Faculty Scholarship

No abstract provided.

Judicial Capacities And Patent Claim Construction: An Ordinary Reader Standard, Greg Reilly

Faculty Scholarship

Patent claim construction is a mess. The Federal Circuit’s failure to provide adequate guidance has created significant problems for the patent system. The problems with claim construction result from the Federal Circuit’s inability to resolve whether claim terms should be given (1) the general, acontextual meaning they would have to a skilled person in the field; (2) the specific meaning they have in the context of the patent; or (3) some combination of the two. The claim construction debate largely overlooks the generalist judges who must implement claim construction. This Article fills that gap, concluding that existing approaches are difficult, …

Creating And Selling Films & Printed Documents: The Challenge Of The Joint Authorship And First Sale Doctrines, Sherri L. Burr

Faculty Scholarship

The joint creation of intellectual property can arise in many forms, and legal issues may arise concerning joint authorship. The selling of intellectual property can also take different forms, which may invoke Copyright laws' first sale doctrine or licensing. This article takes a critical look at the copyright provisions governing joint authorship and first sales of work, in particular the influence of these doctrines on film and the printed word. Joint film products begin with idea treatments and screenplays that may be co-written with two or more authors, and include directors who oversee the making of the entire film, and …

Mental Retardation And The Death Penalty: The Need For An International Standard Defining Mental Retardation, Allison Freedman

Faculty Scholarship

I. INTRODUCTION

Within the international community, there is a consensus against the imposition of the death penalty on individuals with mental retardation. The United States Supreme Court and several international human rights bodies have recognized that individuals with mental retardation should not be subject to the death penalty. Additionally, most countries maintain that individuals who are insane or mentally retarded are shielded from execution. However, reports of individuals with mental retardation who are facing the death penalty continue to surface.

One reason for this may be the lack of an international standard defining mental retardation. There is currently great variation …

The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen G. Marks

Faculty Scholarship

In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it …

“Exploitation Creep” And Development: A Response To Janie Chuang, Aziza Ahmed

Faculty Scholarship

In her article Exploitation Creep and the Unmaking of Human Trafficking Law, Janie Chuang insightfully describes transformations in the discourse on trafficking as it shifted from sex trafficking to human trafficking, and as human trafficking came to be understood as forced labor, and now modern day slavery. With each of these transformations, the United States government, self-anointed “global sheriff” of anti-trafficking efforts, deepened its emphasis on a prosecution-oriented strategy focused on individual perpetrator accountability. As an alternative trajectory, Chuang identifies and convincingly argues for a labor-rights approach that takes into consideration the structural causes of exploitation in the labor market, …

Hiv, Violence Against Women, And Criminal Law Interventions, Aziza Ahmed

Faculty Scholarship

The growing calls for the “securitization of body and property,”[ii] documented by Jonathan Simon in his book Governing Through Crime, illustrates a deep tension in our understanding of the role of criminal law as a tool for societal transformation.[iii] For some, including communities of color, the criminal legal system is a place where inequality flourishes;[iv] for others, including those feminists who have support criminal law interventions, it has become a tool to realize equality.[v] The Trafficking Victims Protection Act, reauthorized in 2013 as an amendment to the Violence Against Women Act (VAWA),[vi] relies heavily on the criminal law to obtain …

Space Madness: Subsidies And Economic Substance, Steven A. Dean

Faculty Scholarship

Extending the reach of the recently codified economic substance doctrine to embrace transactions spurred by tax subsidies would help both Congress and taxpayers promote worthy objectives such as historic preservation and the production of renewable energy. Congress-or quite possibly the courts-could use losses as the lynchpin of an economic substance doctrine for subsidized transactions.

The Creation Of The Department Of Justice: Professionalization Without Civil Rights Or Civil Service, Jed Handelsman Shugerman

Faculty Scholarship

This Article offers a new interpretation of the founding of the Department of Justice (DOJ) in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government's capacity to litigate a growing docket due to the Civil War. More recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves' civil rights. However, it has been overlooked that the DOJ Act eliminated about one-third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with …

Review Of Putting Intellectual Property In Its Place: Rights Discourses, Creative Labor And The Everyday By Laura J. Murray, S. Tina Piper & Kirsty Robertson, Jessica Silbey

Faculty Scholarship

This book is an interdisciplinary marvel. Its focus on creative communities and their practices avoids the frequent pitfalls of intellectual property (IP) scholarship: a myopic focus on the utilitarian and economic theories of IP. The authors acknowledge these dominant themes in much of IP scholarship, but they deliberately take a different tract. As such, this book cannot help but be generous and broad-minded in both its subject matter and range of detail. The authors, a trio of academics - two in the humanities and one in law - set out to explore how creative communities work, theorizing (and they turned …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …

Private Policing Of Mergers & Acquisitions: An Empirical Assessment Of Institutional Lead Plaintiffs In Transactional Class And Derivative Actions, David H. Webber

Faculty Scholarship

Transactional class and derivative actions have long been controversial in both the popular and the academic literatures. Yet, the debate over such litigation has thus far neglected to consider a change in legal technology, adopted in Delaware a dozen years ago, favoring selection of institutional investors as lead plaintiffs in these cases. This Article fills that gap, offering new insights into the utility of mergers and acquisitions litigation. Based on a hand-collected dataset of all Delaware class and derivative actions filed from November 1, 2003 to December 31, 2009, I find that institutional investors play as large of a role …

The Fair Use Doctrine: Markets, Market Failure And Rights Of Use, Wendy J. Gordon

Faculty Scholarship

Markets are most acceptable when they serve efficiency and other goals. It is only under transaction-costless conditions of perfect knowledge, flawless and cost-free enforcement, full monetization, and instantaneous ability to organize and negotiate, that markets are guaranteed to generate efficient outcomes. And even then, markets could fall short as social tools, because goals other than allocative efficiency may fail to be met.

The Language Of Mens Rea, Kenneth Simons, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie

Faculty Scholarship

This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely influential Model Penal Code (MPC) assumes? Second: If not, what can be done about it?

Principled Standards Vs. Boundless Discretion: A Tale Of Two Approaches To Intermediary Trademark Liability Online, Stacey Dogan

Faculty Scholarship

Over the past decade, courts have developed two distinct approaches in evaluating trademark claims against online intermediaries. In one – contributory infringement – courts struggle with the tension between preserving legitimate, non-infringing uses of technologies, on the one hand, and minimizing infringement, on the other. In the other – direct infringement – liability turns on perceived wrongdoing by intermediaries whose own behavior increases the risk of consumer confusion. This second type of liability boasts neither a clear doctrinal framework nor a coherent normative vision. Most troublingly, the scant case law has paid little attention to issues at the core of …

Classical Liberal Constitution Or Classical Liberal Construction?, Gary S. Lawson

Faculty Scholarship

In The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013), Richard Epstein says that he "incorporates but goes beyond" originalist theory by calling for adjudication "in sync with" classical liberal theory political theory, which Professor Epstein claims underlies the Constitution. Without in any way detracting from the numerous virtues of this book, I argue that this is primarily a work of constitutional construction rather than constitutional interpretation. From the standpoint of interpretation, the background rules that best supplement the constitutional text are found in eighteenth-century fiduciary law rather than in classical liberal political theory, though the latter is …

Saving The Federal Circuit, Paul Gugliuzza

Faculty Scholarship

In a recent, attention-grabbing speech, the Chief Judge of the Seventh Circuit, Diane Wood, argued that Congress should abolish the Federal Circuit’s exclusive jurisdiction over patent cases. Exclusive jurisdiction, she said, provides too much legal uniformity, which harms the patent system. In this response to Judge Wood’s thoughtful speech, I seek to highlight two important premises underlying her argument, neither of which is indisputably true.

The first premise is that the Federal Circuit actually provides legal uniformity. Judge Wood suggests that, due to the Federal Circuit’s exclusive jurisdiction, patent doctrine is insufficiently “percolated,” meaning that it lacks mechanisms through which …

The Rule Of Law As A Law Of Law, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, …

Health Insurance Is Dead; Long Live Health Insurance, Wendy K. Mariner

Faculty Scholarship

Today, health insurance is no longer simply a class of insurance that covers risks to health, and it has not been so for many years. Health insurance has become a unique form of insurance — a mechanism to pay for healthcare that uses risk spreading as one of several pricing methods. The Affordable Care Act builds on this important payment function to create a complex social insurance system to finance healthcare for (almost) everyone. This article examines how the ACA draws on various conceptions of insurance to produce a quasi-social insurance system. This system poses new challenges to laws governing …

Fixing Multi-Forum Shareholder Litigation, Minor Myers

Faculty Scholarship

No abstract provided.

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young, Nita Farahany, Gail Heriot, Ilya Somin

Faculty Scholarship

No abstract provided.