Law Commons^™

Verify, Then Trust: How To Legalize Off-Label Drug Marketing, Fazal Khan, Justin Holloway

Scholarly Works

This article will discuss the current state of off-label medicine, relevant legislation in the area, and a proposal designed to capture the benefits of off-label medicine while limiting its dangers when practiced perniciously. Part II will discuss the regulations in place governing off-label promotion and will detail the practice of ghostwriting and its associated concerns. Part III will analyze the costs and benefits of off-label marketing and practice of medicine, and will utilize a case study to demonstrate the predicament of drug manufacturers. Part IV will set forth a proposal to use the newly created Patient-Centered Outcomes Research Institute to …

The “Peripheral Plaintiff”: Duty Determinations In Take-Home Asbestos Cases, Yelena Kotlarsky

Fordham Law Review

   Since the 1970s, litigation concerning the dangers of asbestos in the workplace has transformed from a few workers’ compensation claims to hundreds of thousands of lawsuits against companies in nearly every industry. While the typical plaintiff in these claims is an employee injured while handling asbestos at the worksite, a new class of “peripheral plaintiffs” has recently emerged. These plaintiffs consist of family members who are exposed to asbestos after inhaling the dust that saturates an employee’s person and clothing. The family members then bring claims against the employers and the owners of the premises claiming that they were negligent …

Track Me Maybe: The Fourth Amendment And The Use Of Cell Phone Tracking To Facilitate Arrest, Jeremy H. Rothstein

Fordham Law Review

   Police use of technology to locate and track criminal suspects has drawn increasing attention from courts, commentators, and the public. In United States v. Jones, the Supreme Court held that police installation of a GPS tracking device on a suspect’s vehicle constituted a search under the Fourth Amendment. Less attention has been paid to police tracking of cell phones—a far more common practice. Police can now locate a cell phone within several feet, using either GPS or information taken from cell towers.

   In August 2011, the government asked a federal magistrate judge in Maryland to allow thirty days of …

Tax Exemptions For Charitable Single-Member Limited Liability Companies, Terri Lynn Helge, David M. Rosenberg

Faculty Scholarship

This summer, the IRS issued long-awaited guidance on the deductibility of charitable contributions made to a single-member limited liability company (“SMLLC”) that is wholly-owned by a charitable organization exempt from federal income tax as a organization described in Section 501(c)(3). Previously, in a 2001 private letter ruling, the IRS confirmed that a SMLLC wholly-owned by a U.S. charity did not need to submit a separate application for recognition of federal income tax exemption, but declined to rule on whether contributions made to the SMLLC would be deductible under Section 170 as charitable contributions. An article in the IRS Continuing Professional …

Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Subverting Symbolism: The Matthew Shepard And James Byrd, Jr. Hate Crimes Prevention Act And Cooperative Federalism, Kami Chavis Simmons

Faculty Publications

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the "HCPA"). The HCPA significantly expands the federal government's authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion …

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Faculty Publications

No abstract provided.

Party Polarization And Judicial Review: Lessons From The Affordable Care Act, Neal Devins

Faculty Publications

Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress’s indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in “public goods” like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress’s interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority …

Challenges And Choices In Criminal Law Course Design Commentary Symposium: Criminal Law Pedagogy, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

I thoroughly enjoy every course in my teaching package, but the first-year Criminal Law course occupies a special place in my heart. The subject matter in the Criminal Law course is perhaps the most compelling of any offered in the first-year curriculum. As such, it provides Criminal Law instructors the tremendous opportunity to capture the imagination of students and to highlight the nexus between law in books and law in action.

The "Smart On Crime" Prosecutor, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

"Smart on Crime" criminal justice reforms have emerged in recent years as shrinking government budgets and exploding incarceration rates have prompted scrutiny of the efficiency and efficacy of existing criminal justice approaches. Policymakers across the country have sought out new strategies designed to prevent crime and recidivism, enhance community safety, reduce our reliance on incarceration, and save taxpayer dollars. As a result, law enforcement, courts, and correctional agencies have been implementing innovative approaches in areas such as diversion, problem-solving courts, alternatives to incarceration, and ex-offender re-entry. However, the role of prosecutors and prosecutorial agencies in this story is often overlooked. …

Pawnshops, Behavioral Economics, And Self Regulation, Paige Marta Skiba, Susan Payne Carter

Vanderbilt Law School Faculty Publications

Pawnbroking is the oldest source of credit. There is growing public interest in day-to-day pawnbroking operations, as evidenced by the popularity of reality shows such as “Pawn Stars” and “Hardcore Pawn.” Television viewers’ curiosity about an old credit institution may be due to the fact that 7% of all U.S. households have used pawn credit. Although pawnshops predate biblical times, researchers know surprisingly little about this ancient form of banking and its customers. We fill this gap by documenting detailed information on pawnshop loan repayment and default, and by discussing how pawnshop borrowers’ behavior is consistent with various behavioral economics …

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Essay shifts the focus to the future, exploring how the Supreme Court's new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.

A large and increasing portion of our social discourse takes place electronically, through email and texting, as well as on social media Internet

sites such as Facebook and Twitter. …

Law And Economics As A Pillar Of Legal Education, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper reports the distribution of doctoral degrees in economics and in other fields among faculy at the 26 hghest-ranked law schools. Almost one-third of professors at the top 13 law schools have a Ph.D. degree, with 9 % having a Ph.D. in economics. Law school rank is hghly correlated with the share of faculy holding a Ph.D. in economics and is less correlated with the share offaculy with other doctoral degrees. Law and economics is a major area of legal scholarsh based on citations in the law literature and other impact rankings. In recognition of the increased importance of …

A Theory Of Representative Shareholder Suits And Its Application To Multijurisdictional Litigation, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We develop a theory to explain the uses and abuses of representative shareholder litigation based on its two most important underlying characteristics: the multiple sources of the legal rights being redressed (creating dynamic opportunities for arbitrage) and the ability of multiple shareholders to seek to represent the collective group in such litigation (creating increased risk of litigation agency costs by those representatives and their attorneys). Placed against the backdrop of controlling managerial agency costs, our theory predicts that: (1) the relative strength of the different forms of shareholder litigation will shift over time; (2) these shifts can result in new …

Rehnquist And Panvasive Searches, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by Rehnquist, this essay, written for a symposium on Rehnquist and the Fourth Amendment, describes his views on the types of requirements the Fourth Amendment imposes on the police, how decriminalization can protect privacy, and most importantly, why Rehnquist might have been willing to regulate surveillance …

Inadvertent Implications Of The War Powers Resolution, Michael A. Newton

Vanderbilt Law School Faculty Publications

The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy interbranch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon's veto represented little more than a stark act of congressional opportunism. The President's veto message was prescient in warning that the Resolution is dangerous to the best interests of our Nation. This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee military operations …

Consumer Protection Out Of The Shadows Of Shadow Banking: The Role Of The Consumer Financial Protection Bureau, David J. Reiss

Cornell Law Faculty Publications

Consumer protection remains the stepchild of financial regulation. Notwithstanding the fact that the economic doldrums we find ourselves in originated in the under-regulated subprime mortgage sector, relatively few academic commentators focus on the role that consumer protection can play in reducing such risks as well as in restoring the balance between consumer and producer in the financial markets. This essay suggests that consumer protection regulation has an important role to play in the regulatory structure of the shadow banking sector.

This essay does four things. First, it describes the role of shadow banking in the residential mortgage market—the shadow mortgage …

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

Cornell Law Faculty Publications

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made it impossible to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling, while others responded that such borrowing would violate the separation of powers and therefore that the president should refuse to spend appropriated funds.

This Article analyzes the choice the president nearly faced in summer 2011, and which he or a successor …

Drug Sentencing Policy Discourse Of Fortaleza, Nick Sundback

Independent Study Project (ISP) Collection

Drug sentencing is a pressing issue in Brazil. With the context of high and increasing rates of crime and drug use, overcrowded prisons, and high rates of recidivism both in terms of prison and drug addiction, attitudes of individuals towards drug sentencing policy are worthy of observation and examination.

The objective of this monograph is to examine discourse by informants, five individuals who interact with sections of society most affected by drug sentencing, namely drug users. This monograph will consider pluralistic observations on, and evaluations of, drug sentencing practices, implementation of drug sentencing, an overview of the broader debate over …

Defending The Current State Of Section 363 Sales, Jared A. Wilkerson

W&M Law Student Publications

Notwithstanding the priority-based controversy following the Chrysler and GM § 363(b) sales, value is the central dispute dominating the asset sale debate. Given the mounting data purporting to show that sales harm junior creditors by producing low value, I confront two issues in this article. First, I address the depth and breadth of the low value phenomenon for junior creditors, concluding that(a) although sales appear to cut deeply into creditor recoveries, causation has yet to be shown; and (b) sales have not, contrary to the predictions of some scholars, overtaken reorganization. Second, using qualitative and quantitative analysis, I challenge four …

Dialogue Magazine, Fall 2012

Dialogue, the magazine of the DePaul University College of Law

No abstract provided.

Spacs And The Jobs Act, Usha Rodrigues

Scholarly Works

The law has long confined the average investor to trading in public securitieswhile allowing wealthy—or “accredited”—individual investors access to a panoply of private securities, including investment vehicles such as hedge funds and private equity funds. Nevertheless, pressure to let the general public into private equity has been growing. Two forces have contributed to this mounting pressure. First, public investors are eager to try their hand at investing in private enterprise. Second, private firms need capital. In the face of these forces, the sharp line that has long separated public and private firms has become increasingly blurred

Consider the story of …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

Without question, O.C.G.A. 51-12-13 as construed in McReynolds and Couch ushers in a new era in Georgia tort law. It topples the old regime in which multiple tortfeasors were held jointly liable when their combined acts of negligence injured an innocent plaintiff. The new regime is one of apportionment and liability limited to one's personal share of fault. Fault may be apportioned when it previously could not. It may be apportioned to those who are immune, to those who are unknown, and even to those who intentionally injure an innocent plaintiff. The practical consequence of this regime change is to …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33 as construed by the Georgia Supreme Court in two recent opinions.

Summary Of State Of Nevada V. Reliant Energy, Inc., 128 Nev. Adv. Op. No. 46, Brittnie Watkins

Nevada Supreme Court Summaries

The Court considered an appeal from a district court’s order dismissing Appellants’ complaint, which alleged violation of Nevada antitrust laws.

October Roundtable: Un Secretary-General Report On “Responsibility To Protect: Timely And Decisive Response”, Introduction, Claudia Fuentes Julio

Human Rights & Human Welfare

An annotation of:

“Responsibility to Protect: Timely and Decisive Response” Ban Ki-moon, July 2012.

Responsibility To Regulate: How The ‘Responsibility To Protect’ Expands State Power, Philip Cunliffe

Human Rights & Human Welfare

Like most UN reports, particularly those concerned with the doctrine of the "responsibility to protect" (RtoP), the latest report of the UN Secretary-General is filled with plenty of pious guff mixed in with the platitudes that engulf UN diplomacy. But buried within the blathering are also some disturbing prescriptions for how the UN envisages rolling out RtoP around the world. I want to draw attention to three specific points in order to consider what these tell us about RtoP as a political model. First, I will look at the treatment of media and speech in the report; second, how the …

Separate But Equal: Miranda's Rights To Silence And Counsel, Steven P. Grossman

All Faculty Scholarship

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda …

Compelling Orthodoxy: Myth And Mystique In The Marketing Of Legal Education, Kenneth Lasson

All Faculty Scholarship

This article seeks to demonstrate the negative effects of law schools’ preoccupations with enhancing their image and marketing strategy, especially as they are reflected in both scholarship and academic freedom.

Patents 101: Patentable Subject Matter And Separation Of Powers, Max Stul Oppenheimer

All Faculty Scholarship

The definition of statutory subject matter lies at the heart of the

patent system. It is the reflection of Congress's policy decision as to

what types of inventions one may patent. While the congressional

definition of statutory subject matter (in what is now 35 U.S.C. § 101)

has remained fundamentally constant since 1790, the Supreme Court

has reinterpreted and redefined statutory subject matter several times,

leaving lower courts with the frustrating task of trying to develop a

coherent jurisprudence against a changing landscape. This

inconstancy has introduced uncertainty for inventors who are trying to

make the fundamental decision of whether …