Law Commons^™

Making Research A Requirement Of Treatment: Why We Should Sometimes Let Doctors Pressure Patients To Participate In Research, David Orentlicher

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In this article, Professor David Orentlicher argues that when a patient could be offered one of multiple established treatments, doctors should be able to offer treatment only if the patient agrees to participate in research aimed at determining which of the treatments is most effective. Making treatment conditional on research participation will help researchers complete badly needed studies.

Diversity: A Fundamental American Principle, David Orentlicher

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In this article, Professor David Orentlicher argues that following the U.S. Supreme Court's affirmative action decisions in June 2003, both the Court in its defense of diversity and the commentators in their critiques of the diversity rationale have misjudged the public interest in diversity . Rather than having insufficient weight to justify affirmative action or reflecting a limited educational interest, diversity is a critical principle for much of American constitutional and social structure. In particular, the federalist system of government rests in large part on the belief that a diversity of approaches by the fifty states will lead to better …

Dealing With Hate In The Feminist Classroom, Kathryn M. Stanchi

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The goals of this essay are two-fold. First, by describing the experience I had in Law and Feminism, the essay will show how hateful and harassing speech in a seminar devoted to issues of gender, race and sexuality can rob students of important educational experiences. The story of my class is meant to remind legal educators and administrators of the concrete harm, both personal and educational, of hate speech. Too often the hate speech debate focuses on the theoretical and the abstract; participants forget that the principles at stake have demonstrable consequences for real people.

Second, while this essay does …

Capitalizing Adolescence: Juvenile Offenders On Death Row, Mary Berkheiser

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Taking as its sample group the 2005 population of seventy-two juvenile offenders on death row, this article examines the roles of peer influence and group offending in the murders committed by those now awaiting execution. Based on that examination, the article suggests certain reforms in the capital trials of juveniles. To set the stage, the article first marshals the evidence supporting the “group crime” theory of youth violence and then discusses the critical role of peers in adolescent development and group offending of a violent crime.

Decanal Haiku, Nancy B. Rapoport

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Musings on the life of a law school dean.

Enron And The New Disinterestedness - The Foxes Are Guarding The Henhouse, Nancy B. Rapoport

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Discussion of the 2005 amendments to the U.S. Bankruptcy Code as those changes relate to conflicts of interest of investment bankers.

Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley

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Studies and articles examining tenured, tenure-track and contract faculty in law schools have exposed the inequalities that women face when compared with their male counterparts. This article asks the legal academic community to consider these conditions in light of established Title VII doctrine which forbids discrimination because of sex. This article offers a hypothetical about the fictitious National Law School, whose labor relationships mimic those of many real law schools in a number of ways. Based on the facts in this hypothetical, the article explores different possible causes of action, either systemic or individual, that employees could reasonably win against …

Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel

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This Article describes the evolution of the perception of the modern class action from populist darling to greedy lawyer pariah, including recent passage of CAFA. It then examines the degree to which different types of cases present different potential benefits and detriments of class action treatment and explains why investor class actions, including those brought by institutional investors, are particularly likely to benefit from class treatment, are resistant to many of the perceived problems of class actions in other contexts, and should receive a warmer welcome from courts, both in absolute terms and relative to other types of class actions. …

Lawyers, Justice And The Challenge Of Moral Pluralism, Katherine R. Kruse

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The debate over whether it serves or undermines the interests of justice for lawyers to temper the zeal of their advocacy based on considerations of morality or justice has largely been polarized between two camps: traditionalists and moralists. Traditionalists defend the amoral role of lawyers, arguing that lawyers should remain moral neutral in their representation of clients. Moralists propose alternative social justice lawyering models, which urge lawyers' morally engagement in their choice of clients, their interpretation of law, and their counseling of clients.

This article revisits the debate by recasting the question at its center. Instead of inquiring what a …

Foreward: Competing And Complementary Rule Systems: Civil Procedure And Adr, Jean R. Sternlight

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This is a foreword to articles submitted as part of the Association of American Law School’s Symposium during at the January 2004 AALS’s Annual Meeting in Atlanta, Georgia entitled "Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future." The session brought together panelists whose expertises ranged across the academy. The legal academics were joined by the federal district judge now chairing the committee charged by the Judicial Conference of the United States to draft federal civil procedural rules. The stimulating session reflected on the relationship between litigation and non-litigation approaches to dispute resolution. Participants explored …

Separate And Not Equal: Integrating Civil Procedure And Adr In Legal Academia, Jean R. Sternlight

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Traditionally, academics specializing in ADR and civil procedure have not tended to deal with each other's issues. The typical civil procedure course focuses on litigation, and at best throws in a few classes on mediation and negotiation. Similarly, the typical ADR course devotes little or no attention to litigation, law, courts, or administrative institutions. Thus, the two disciplines are taught quite separately. Further, this separation is not equal. While students are required to learn about litigation, and are also offered many additional litigation electives, the ADR curriculum is almost always purely elective, and the classes are much smaller. Yet, the …

Linking The Rule Of Law And Trade Liberalization In Jamaica, Rachel J. Anderson

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Jamaica is one of several smaller countries that hope to improve their position in the global market, raise living standards, and strengthen democracy through trade liberalization. Adapting David Dollar's cycles of good governance, this article argues that sustainable trade liberalization, rule of law, and democracy are linked and that sustainable success in one area requires contemporaneous progress in the other two. It concludes that improving the rule of law in Jamaica is necessary for sustainable trade liberalization.

Redressing Colonial Genocide: The Hereros' Cause Of Action Against Germany, Rachel J. Anderson

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In February 2003, the Herero People's Reparations Corporation filed a complaint against Germany in the District Court of the District of Columbia alleging violations of international law, crimes against humanity, genocide, slavery, and forced labor before, during, and after the German-Herero War (1904-07). The German government, modern scholars, and other commentators have long taken the position that genocides committed by colonial governments in the nineteenth century did not violate international law at that time. Arguments for this position rely, inter alia, on the belief that all forms of genocide were first criminalized and made punishable by the 1948 U.N. Convention …

Judging The Tournament, Jay S. Bybee

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The United States Constitution provides that the President has the power to appoint federal judges with the advice and consent of the Senate. The Constitution does not specify the criteria that the President should use in selecting judicial nominees or that the Senate should employ in reviewing them. In recent years, the process of nominating and confirming candidates for the federal bench, and especially the Supreme Court, has become increasingly political and contentious. Professors Choi and Gulati criticize the apparently growing role ideology plays in choosing and evaluating judicial nominees and propose a bold alternative. Their “Tournament of Judges” purportedly …

Justice Miriam Shearing: Nevada's Trailblazing Minimalist, Mary E. Berkheiser

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Nevada Supreme Court Justice Miriam Shearing retired at the end of her second term on January 4, 2005. Over the nearly thirty years of her very public life on the bench, many have written of her accomplishments as the firs woman to enter the brotherhood of the Nevada judiciary. With Justice Sharing’s retirement, the time is ripe for an examination of her judicial decisions during the twelve years she served on the Nevada Supreme Court. The analysis here provides one perspective on her body of work. It begins, as it must, with a glimpse into the person behind the work.

A Primer On The Law And Ethics Of Treatment, Research, And Public Policy In The Context Of Severe Traumatic Brain Injury, Stacey A. Tovino

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From the 1976 case of Karen Ann Quinlan to the March, 20, 2004, statement of Pope John Paul II, physicians, lawyers, and theologians have struggled with the legal and ethical implications of treatment and public policy decisions in the context of devastating brain injury. Recent medical literature proposing an ethical framework for interventional cognitive neuroscience involving patients in states of minimal consciousness raises additional legal and ethical issues in the context of clinical research.

Using the Mathew Kosbob case as a point of departure, this article discusses the legal and ethical issues raised by treatment and research, as well as …

Hospital Chaplaincy Under The Hipaa Privacy Rule: Health Care Or "Just Visiting The Sick?", Stacey A. Tovino

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Approximately seventy-nine percent of Americans believe that praying can help people recover from illness, injury or disease, and nearly seventy-seven percent of American patients would like spiritual issues discussed as part of their care. Despite Americans' strong beliefs in the health-related benefits of religious and spiritual practices and traditions, the preamble to the federal Department of Health and Human Services' ("HHS") health information privacy rule (the "Privacy Rule") explains that health care "does not include methods of healing that are solely spiritual" (the "preamble"). The preamble concludes that, "clergy or other religious practitioners that provide solely religious healing services are …

Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino

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Advances in science and technology frequently raise new ethical, legal, and social issues, and developments in neuroscience and neuroimaging technology are no exception. Within the field of neuroethics, leading scientists, ethicists, and humanists are exploring the implications of efforts to image, study, treat, and enhance the human brain.

This article focuses on one aspect of neuroethics: the confidentiality and privacy implications of advances in functional magnetic resonance imaging (“fMRI”). Following a brief orientation to fMRI and an overview of some of its current and proposed uses, this article highlights key confidentiality and privacy issues raised by fMRI in the contexts …

Book Review: "The Birth Of Surrogacy In Israel", Stacey A. Tovino

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Instead of analyzing Israel’s Surrogate Motherhood Agreements Act from a purely legal or theoretical perspective, D. Kelly Weisberg weaves individuals, events, and other factors into a fascinating story about the Israeli legislative process. A case in point: Weisberg begins by exploring the private lives of Rachel and Benjamin, the biological parents of twin babies carried by Sarah, the first surrogate moth to carry a baby under Israel’s surrogacy law. Weisberg also explores the story of Naomi and Dan, the biological parents of a baby boy carried by Hanna, the second surrogate mother to carry a baby under the legislation. Readers …

Book Review: "Jewish Biomedical Law: Legal And Extra-Legal Dimensions", Stacey A. Tovino

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Three extra-legal themes—the influence of morality upon Jewish law (halakhah), the growing awareness and implementation of the value of patient autonomy, and the role of scientific progress in the shaping of halakhic decisions—distinguish Daniel Sinclair’s work from other sin the field of Jewish biomedical law. Students and lawyers new to Jewish biomedical law may struggle with Sinclair’s decision to reserve until the final chapter his theories regarding how biomedical halakhah works. However, advanced students and scholars in the field will appreciate the opportunity to understand Sinclair’s three extra-legal themes in context and his decision to root his final …

Book Review: "Introduction To Jewish And Catholic Bioethics: A Comparative Analysis", Stacey A. Tovino

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Aaron Mackler’s agenda is to provide an orientation to ethical reasoning in the Roman Catholic and Jewish traditions, explore Roman Catholic and Jewish deliberations in five areas of bioethics, and identify and examine the traditions’ divergent and convergent methodologies. Mackler’s spirit is to learn more about his own religious traditions by studying the traditions of others. Accomplishing his agenda while remaining true to his spirit, Mackler shows just how much Jewish and Catholic thinkers can learn from one another.

When You Wish Upon Dastar: Creative Provenance And The Lanham Act, Mary Lafrance

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This Article examines the application of section 43(a) of the Lanham Act to claims of reverse passing off through the lens of the Supreme Court's unpersuasive effort in Dastar Corp. v. Twentieth Century Fox Film Corp. to exclude a single class of reverse passing off-claims - those involving “expressive” works as opposed to physical commodities - from the scope of section 43(a). The Article critiques the Court's analysis of section 43(a) in light of case law and the pertinent legislative history, including, the Trademark Law Revision Act of 1988, the Berne Convention Implementation Act of 1988, and the Visual Artists …

A Comparative Study Of United States And Japanese Laws On Collaborative Inventions, And The Impact Of Those Laws On Technology Transfers, Mary Lafrance

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This research examines United States and Japanese laws regarding patent rights in collaborative inventions, and inquires whether these laws may impede technology transfers by creating uncertainty regarding the ownership, validity, or enforceability of the resulting patents, or by imposing undue obstacles to the licensing or assignment of such patents.  Where the laws of the two countries differ, this paper compares the merits of each approach and also assesses whether the differing approaches could be troublesome for cross-border transactions.

One of the most significant differences between United States and Japanese law regarding joint inventions is in the requirement of consent for …

The Contract Drafting Process: Integrating Contract Drafting In A Simulated Law Practice, Charles C. Lewis

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No abstract provided.

Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive? What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos

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Race matters, but judges and courts have failed to fashion a rule of law that is inclusive of all racial perspectives and realities in the United States. The reason for this dismal performance lies in how predominantly White judges, and therefore courts, conceptualize race. This article illustrates this proposition by analyzing the Rehnquist Court's race relations jurisprudence in three Supreme Court decisions handed down in 2003: Grutter v. Bollinger,Gratz v. Bollinger,and Georgia v. Ashcroft.Even as the United States Supreme Court entered increasingly complex areas of race relations, the Court continued to apply a simplistic concept of how race functions. The …

Report Regarding The Pacific Mcgeorge Workshop On Globalizing The Law School Curriculum, Thomas O. Main

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No abstract provided.

How I Compete With “The Donald” And Teach Them To Write: The Forensic Irac, Suzanne Darrow Kleinhaus

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No abstract provided.

The Impact Of Hsas On Health Care Reform: Preliminary Results After One Year, Edward J. Larson, Marc Dettmann

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With over one year having passed since the Medicare Modernization Act ("MMA") authorized the creation of the first individual Health Savings Accounts ("HSA"), this Article reviews the context, structure, promise, and impact of this new type of tax-advantaged account. The Article begins by briefly reviewing the context of this reform, documenting what both Presidents Clinton and Bush noted about rising costs and decreasing access. The Article then reviews the HSA legislation itself, H.R. 2596, and summarizes how HSAs operate. Part IV of this Article reviews the claims made for HSAs when H.R. 2596 passed as part of the MMA. Part …

Gauging The Cost Of Loopholes: Health Care Pricing And Medicare Regulation In The Post-Enron Era, Elizabeth Weeks Leonard

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This article explores the problem of risk perception and regulatory loopholes in the unique era of corporate governance that followed Enron and other high-profile corporate scandals. The article draws on behavioral law and economics theory to examine pressing issues in U.S. welfare policy reform. The current Administration's domestic agenda features proposals to privatize traditional government welfare programs, including Social Security and Medicare. Those proposals rely on market competition and other profit incentives to improve quality and reduce program costs. The article traces a detailed case study of a prominent for-profit hospital corporation, the impact of public perceptions of corporate wrongdoing, …

Commentary: Grades- Achievement, Attendance, Or Attitude, Anne Dupre, John Dayton

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This article addresses the impact that grades can have on the lives of students and discusses what grades actually represent in terms of student achievement. It also addresses disputes involving grading policies that allowed non-academic factors in decisions on grades or academic credit. The article includes a brief summary of the history and legal theories related to grading challenges and then provides a review of the relevant case law including Board of Curators of the University of Missouri v. Horowitz, Barnard v. Inhabitants of Shelburne, Tinker v. Des Moines, Goss v. Lopez, Knight v. Board of education, Gutierrez v. School …