Law Commons^™

Detailing Daubert, The Hon. E Richard Webber, Dana M. Malkus

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When Justice Blackmun wrote Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the assignment was to reconcile the standards governing the admissibility of expert testimony with Federal Rule of Evidence 702. As Justice Blackmun recognized, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had long served as the polestar for determining the admissibility of expert testimony in litigation. Although the test developed by the Frye court was ultimately rejected when the Supreme Court announced new rules regarding the admissibility of expert testimony, the Frye court’s recognition of the purpose behind admitting expert testimony remains instructional: …

Horizontal And Vertical Equity In Taxation As Constitutional Principles: Germany And The United States Contrasted, Henry Ordower

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Explores U. S. Supreme Court and German Constitutional Court decisions that apply their respective constitutions to taxation controversies, especially controversies in matters involving equal protection or due process protection.

Gender Mainstreaming In International Trade: Catalyst For Economic Development And Political Stability, Constance Z. Wagner

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This paper examines the role of gender mainstreaming in international trade policy and law upon the tenth anniversary of the Beijing Declaration and Platform for Action (“Beijing Declaration”) and the World Trade Organization (“WTO”). The author notes that these two topics have not been successfully integrated but will need to be if globalization is to proceed in a meaningful, positive way. After tracing the historical development of gender mainstreaming at the international level through the Beijing Declaration, the author outlines the manner in which various intergovernmental organizations within the United Nations system have implemented its mandate. However, gender mainstreaming is …

No Longer Just Company Men: The Flexible Workforce And Employment Discrimination, Review Essay On 'From Widgets To Digits Employment Regulation For The Changing Workplace', By Katherine V.W. Stone (2004), Miriam A. Cherry

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In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and …

Markets For Markets: Origins And Subjects Of Information Markets, Miriam A. Cherry, Robert L. Rogers

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This Article focuses on why information markets have covered certain subject areas, sometimes of minor importance, while neglecting other subject areas of greater significance. To put it another way, why do information markets exist to predict the outcome of the papal conclave and the Michael Jackson trial, but no information markets exist to predict government policy conclusions, Supreme Court decisions, or the rulings in Delaware corporate law cases? Arguably, from either a dollar value or a social utility perspective, these areas of law and business would be more important than the outcome of, say, the Jackson trial. Why, then, do …

A Comparative Approach To Teaching Criminal Procedure And Its Application To The Post-Investigative Stage, Stephen C. Thaman

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This article addresses why a comparative perspective should be brought into a basic bar course like criminal procedure. American courts and students should be aware of how other countries process their criminal cases to determine whether we can learn from them. It discusses archetypes of criminal procedure as teaching tools, applications of comparative models in the post-investigative stage of criminal procedure, the right to an oral immediate trial and the right to confront witnesses, and the division of labor between lay and professional judges in deciding facts, guilt, and sentencing. By immersing oneself in comparative law and the history of …

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

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Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so …

The Mysterious Survival Of The Policy Against Informed Consent Liability For Hospitals, Robert Gatter

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The role of hospitals in managing the informed consent process for hospital-based treatments has expanded substantially over the last several decades. Most recently, many hospitals have installed multi-media platforms designed to provide a patient with basic information about a recommended procedure, including its associated risks, and to record the patient’s consent to or rejection of the procedure. Yet, despite the substantial control that hospitals exercise over the informed consent process, state courts routinely dismiss informed consent claims brought against hospitals, holding that only physicians have the training and expertise to satisfy informed consent obligations and therefore that only physicians may …

Open Access In Law Teaching: A New Approach To Legal Education, Matthew T. Bodie

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The "open access" movement seeks to change our approach to the distribution of scholarship in the fields of science, medicine, the social sciences, and law. This Essay argues for the application of these principles to legal education itself. Open access would mean greater flexibility, interaction, and innovation in the creation of course materials. It would lead to new teaching methods and new forms of feedback between student and professor. Open access centers on particular legal subject areas could facilitate national and international collaboration. Ultimately, the open access law school would ameliorate the growing standardization and commodification of legal education by …

Shame And The Meanings Of Punishment, Chad Flanders

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Debates over shaming punishments have raged over the past few years, with people like Dan Kahan and Eric Posner for them, while James Whitman and Martha Nussbaum have entered the fray strongly against them. This Essay argues that both sides in the shaming punishment debate have it only party right. Those who favor shaming sanctions are correct that we should (all else being equal) favor those punishments which are expressive rather than those that involve some form of hard treatment. And those who reject shaming sanctions are correct that such sanctions involve forms of humiliation and denials of dignity that …

Comparative Law Observations On Taxation Of Same-Sex Couples, Henry Ordower

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Identifies the various models for addressing the interplay between same sex relationship protections and taxation outside the United States.

Rethinking The Kyoto Protocol: Are There Legal Solutions To Global Warming And Climate Change?, Douglas R. Williams, Anita Halvorssen, J. Kevin Healy, William Pizer, Jacob Werksman

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Professor Williams moderates a panel discussion of the Kyoto Protocol and potential solutions to climate change. Other participants include Anita Halvorssen, J. Kevin Healy, William Pizer, and Jacob Werksman.

Antitrust & Hospital Mergers: Does The Nonprofit Form Affect Competitive Substance?, Thomas L. Greaney

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Following a string of government losses in cases challenging hospital mergers in federal court, the Federal Trade Commission and the Department of Justice issued their report on competition in health care seeking to set the record straight on a number of issues that underlie the judiciary's resolution of these cases. One such issue is the import of nonprofit status for applying antitrust law. This essay describes antitrust's role in addressing the consolidation in the hospital sector and the subtle influence that the social function of the nonprofit hospital has had in merger litigation. Noting that the political and social context …

No Guarantees: Lessons From The Property Rights Gained And Lost By Married Women In Two American Colonies, Yvette Joy Liebesman

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While our own history demonstrates long-term forward progress and expansion of women’s rights, it is also marked with periods of back-treading, and there is no absolute assurance that the rights women in the United States enjoy today will be present in the future. Rights of property, suffrage, and liberty are not guaranteed to last forever, and not just in places such as Iran and Afghanistan. Indeed, we are only a few generations removed from circumstances in which our own freedom was sharply curtailed, and they are under a continuing threat.

Decentering The Firm: The Limited Liability Company And Low Wage Immigrant Women Workers, Miriam A. Cherry

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Congress is now considering radical changes to the immigration system. This article looks at the immigration issue as a labor and employment law question, and proposes a possible solution based on this approach.

I suggest that forming Limited Liability Companies (LLCs) will benefit low-wage immigrant women workers by transforming them into business owners. By using existing legal structures to their benefit, low-wage women workers can curtail at least a portion of the exploitation that they currently experience. Instead of being hired to perform a job, having the intermediary take a cut, and then pay them some amount out of that, …

Tiresias And The Justices: Using Information Markets To Predict Supreme Court Decisions, Miriam A. Cherry, Robert L. Rogers

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This Article applies the emerging field of information markets to the prediction of Supreme Court decisions. Information markets, which aggregate information from a wide array of participants, have proven highly accurate in other contexts such as predicting presidential elections. Yet never before have they been applied to the Supreme Court, and the field of predicting Supreme Court outcomes remains underdeveloped as a result. We believe that creating a Supreme Court information market, which we have named Tiresias after the mythological Greek seer, will produce remarkably accurate predictions, create significant monetary value for participants, provide guidance for lower courts, and advance …

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

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This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

Conflicts Of Interest In International Human Drug Research And The Insufficiency Of International Protections, Robert Gatter

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The problem of financial conflicts of interest in human subjects research is international in scope as drug manufacturers conduct trials in countries outside of the U.S., Japan, and the European Union, thereby side-stepping domestic regulation of conflicts of interest. Because such out-sourcing of human drug trials results in exporting risks associated with financial conflicts of interest, this essay examines the primary international sources for regulating those conflicts. These sources include the World Health Organization’s Guidelines for Good Clinical Practice for Trials on Pharmaceutical Products, the Guidelines for Good Clinical Practice adopted by the International Conference on Harmonisation of Technical Requirements …

A Right To No Meaningful Review Under The Due Process Clause: The Aftermath Of Judicial Deference To The Federal Administrative Agencies, Ruqaiijah A. Yearby

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No one ever looks forward to entering a nursing home because it means leaving the things most dear to them: family, home, and independence. Nevertheless, without the current nursing home system, many elderly and disabled persons, who require comprehensive treatment, would not have access to necessary care. In 2000, nursing homes provided care to 1.6 million elderly and disabled persons, and *724 by 2050, nursing homes are projected to provide care to 6.6 million elderly and disabled persons. Thus, we can ill afford to cripple the nursing home industry. But, this is exactly what has occurred. The Constitution, the Administrative …