Digital Commons Network^™

From Free Riders To Fairness: A Cooperative System For Organ Transplantation, Christopher Robertson

Faculty Scholarship

In America alone almost 100,000 people are suffering while waiting for organ transplants, and more than 7,300 of these patients will die waiting. Given that tens of thousands of useable cadaveric organs are buried or incinerated every year, the organ shortage is a social, political and legal problem, one that is inherent in the conceptual design of the current organ system. While the system is supposed to turn on individuals’ autonomous choices, it instead depends on default outcomes and the decisions of next of kin. While we tend to think about the organ choice as one of altruism (viz. -- …

Financial Accounting And Corporate Behavior, David I. Walker

Faculty Scholarship

The power of financial accounting to shape corporate behavior is underappreciated. Positive accounting theory teaches that even cosmetic changes in reported earnings can affect share value, not because market participants are unable to see through such changes to the underlying fundamentals, but because of implicit or explicit contracts that are based on reported earnings and transaction costs. However, agency theory suggests that accounting choices and corporate responses to accounting standard changes will not necessarily be those that maximize share value. For a number of reasons, including the fact that executive compensation often is tied to reported earnings, managerial preferences for …

Determining An Arbitrator's Jurisdiction: Timing And Finality In American Law, William W. Park

Faculty Scholarship

In arbitration law, few matters engender more stimulating debate than the interaction of arbitrators and judges with respect to jurisdictional determinations. When one side asserts that it never agreed to arbitrate, or contests the arbitrator’s substantive mission or procedural powers, someone must determine the existence, validity, and/or scope of the arbitration clause.

Protecting Religion Through Statute: The Mixed Case Of The United States, Jay D. Wexler

Faculty Scholarship

Various legislatures of the United States and those of other countries with transitional legal systems have much to learn from U.S. Congress's mixed record of protecting religious freedom through statute. While legal systems and religious culture differ tremendously worldwide, some general lessons transcend these variances. In this context, the successes and failures of the Religious Freedom Restoration Act, or RFRA, (1993) and Title VII of the Civil Rights Act (1964) are analyzed. Five major conclusions are reached, which focus on the danger of ambiguity and the need for clarity and strictness in order to prove a religious protection act effective.

Pharma On The Hot Seat, Nicole Huberfeld

Faculty Scholarship

The pharmaceutical industry has been receiving greater scrutiny lately due in large part to the many public and private legal enforcement actions taken against pharmaceutical manufacturers. These enforcement actions, along with legal developments such as the OIG Compliance Guidance for Pharmaceutical Manufacturers, the Sarbanes-Oxley Act’s statutory guidelines for public corporations, the HIPAA privacy regulations, and the Medicare Modernization Act, have the potential to encourage the pharmaceutical industry to self-regulate beyond the bounds currently required by the law. After a brief overview of enforcement actions and compliance programs directed toward the pharmaceutical industry, this Article reviews a similar situation the hospital …

Foreword: The Politics Of Health Law: Any Tipping Points In View?, Frances H. Miller

Faculty Scholarship

Malcolm Gladwell explored the way certain ideas and behaviors can proliferate "just like viruses do" once they achieve a critical mass in The Tipping Point,' his best-seller about the sorts of widespread and rapidly adopted social phenomena he labels epidemics. Gladwell's subtitle, "How Little Things Can Make a Big Difference," indicates that he thinks it need not take much to get one of these social epidemics rolling. He does believe, however, that three factors are essential: getting "people with a particular and rare set of social gifts" involved,² packaging the ideas so they are "irresistible" under the circumstances, ^{3 …}

The Public's Right To Fair Use: Amending Section 107 To Avoid The "Fared Use" Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use" and "The End of Friction," commentators argue about whether or not the copyright doctrine of fair use should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The …

Evaluation Of "I Am Moving, I Am Learning" Trainings - A Measure Of Change In Obesity Awareness, Obesity Prevention, And Movement Knowledge., Brandon S. Williams

Graduate Theses, Dissertations, and Problem Reports (ETD)

This study examines participants’ change in knowledge before and after attending a childhood obesity training event. A pre-post assessment scale was used to measure and compare knowledge scores among participants of both two and three-day events. The questionnaire included seven subscales of content delivered during the training sessions. These included: training goals and movement guidelines, general obesity knowledge, general movement knowledge, assessing and evaluating children’s motor skills, and three subscales specifically on the movement workshops in the training. This study consisted of 78 personnel working for the Office of Head Start or Women, Infants and Children (WIC) enrolled in one …

Consumer Law As Tax Alternative, Rory Van Loo

Faculty Scholarship

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws. Tax law dominates distributional conversations partly because legal rules are seen as less efficient and partly because consumer law research speaks to narrow and siloed contexts. Even millions of dollars in reduced credit card fees seem trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. This Article is the first to synthesize the fragmented studies quantifying inefficiently higher consumer prices across diverse markets — called overcharge. These studies indicate that laws reducing overcharge could make a substantial reduction in inequality. Moreover, this …

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 …

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 …

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.

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 …

Wglt Program Guide, January-February, 2007, Illinois State University

WGLT Program Guides

This guide details programming for WGLT, a public radio station owned by Illinois State University.

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

Getting Permission, Philip A. Hamburger

Faculty Scholarship

Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …

Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens

Faculty Scholarship

What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined.

The law of marital names has undergone a significant transformation over the past forty years. For about a hundred years of U.S. history, states required married women to take their husbands' names in order to engage in …

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

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.

Using Comparative Torts Materials To Teach First-Year Torts, Anthony J. Sebok

Articles

The article argues that incorporating comparative torts materials, particularly from European jurisdictions such as Germany and Italy, can effectively enhance the teaching of tort damages in first-year law courses. This approach is not about adopting a comparative curriculum but using these materials to provide deeper insights into American tort law.

In Memoriam: Clark Byse, Stephen G. Breyer, Elena Kagan, Andrew L. Kaufman, Todd D. Rakoff, Peter L. Strauss, Richard K. Willard

Faculty Scholarship

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Clark Byse.

The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin

Faculty Scholarship

No abstract provided.

Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger

Faculty Scholarship

In this Essay, I want to explore the Baby M case from a different, less philosophical perspective. The question I pose is simply this: how did the Sterns and the Whiteheads find one another in the first place? After all, apart from their New Jersey location (and a shared fondness for Bruce Springsteen), the two couples had little in common. Mary Beth was a high school dropout; Betsy had a Ph.D. and M.D. from the University of Michigan. Rick was a Vietnam vet fighting an ongoing battle with unemployment and alcoholism; Bill led what close friends called "a quiet, industrious …

If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack

Faculty Scholarship

A recent conference on housing rights invited participants to think about the impacts, actual and potential, of the judge-made doctrine of the implied warranty of habitability in residential tenancies. This essay focuses on the warranty, and suggests establishing technology systems for judges to help them give new
life to the doctrine and thereby to accelerate actual repair of rental housing through court mandates.

The conference attendees seemed to agree that when trial judges are presented with claimed breaches of the warranty of habitability, they have not, on the whole, used the doctrine to order that repairs actually be effectuated. They …

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

Substantive Media Regulation In Three Dimensions, Gregory P. Magarian

Scholarship@WashULaw

Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic …

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …

Faculty Publications 2006, Lsu Health Sciences Center New Orleans

Historical Faculty Publications

This Faculty bibliography contains 638 publications.