Law Commons^™

Reflections On The 25Th Anniversary Of The Wmu Center For The Study Of Ethics In Society, Ronald Kramer

Center for the Study of Ethics in Society Papers

Center for the Study of Ethics in Society: Celebrating 25 Years - Presented November 15, 2010.

Medical Malpractice And Compensation In France, Part Ii: Compensation Based On National Solidarity, Geneviève Helleringer

Chicago-Kent Law Review

In France, distinctively from the compensation process by insurers of liable professionals, compensation of the victim will in certain cases such as medical hazards, hospital-acquired infections, blood-transfusion infections, result from a compensation scheme similar to that available for victims of terrorism and crimes. It is based on national solidarity and dispensed by the National Fund for Compensation of Medical Accidents (ONIAM). The growing importance of such a compensation scheme may appear to be a double-edged evolution. On one hand, it has improved the status of victims of medical harms; they are increasingly integrally compensated more quickly and under more flexible …

Willpower Taxes, Lee Anne Fennell

Articles

Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …

Judicial Inconsistency As Virtue: The Case Of Justice Stevens, Justin Driver

Articles

No abstract provided.

Death Penalty Sentencing In Japan Under The Lay Assessor System: Avoiding The Avoidable Through Unanimity, Elizabeth M. Sher

Washington International Law Journal

The Lay Assessor Act of 2004 mandated the creation of a mixed lay judge system, called the saibanin seido. Under this new system, jurors, or lay judges, sit with professional judges to decide the fate of criminal defendants. The Lay Assessor Act requires lay judges to decide both the verdict and sentencing of defendants in the same sitting. The verdict and sentence require support from a majority of the jurors and must include one professional judge on the panel. For certain crimes in Japan, the death penalty is one possible sentence. Under the saibanin seido system, for the first …

Labor Relations And Labor Law In Japan, Atsushi Tsuneki, Manabu Matsunaka

Washington International Law Journal

This article builds on a rationalistic understanding of Japanese employment customs to argue that, up until the 1990s, Japanese labor law facilitated private bargaining instead of engineering a desired outcome directly through legal regulations. Through this indirect approach toward labor relations, at least part of Japanese labor law made a highly positive contribution to the attainment of economic efficiency. After the 1990s, the merits of Japanese employment customs diminished and needed reform. While such reforms were made in some aspects, Japanese labor law has taken the stance of directly regulating the economy, particularly in the area of employment protection and …

The Problem Of Enforcing Nature's Rights Under Ecuador's Constitution: Why The 2008 Environmental Amendments Have No Bite, Mary Elizabeth Whittenmore

Washington International Law Journal

In 2008, Ecuador became the first nation to give rights to nature when it ratified constitutional amendments (new articles 71-74) that grant the environment the inalienable right to exist, persist, and be respected. Environmentalists hope Ecuador’s amendments will lead to improvement in a country devastated by resource exploitation, and that other countries will follow. Yet, many wonder whether the amendments will be enforced. This comment argues that—all things considered—successful execution of the amendments is unlikely. Ecuador’s President has not demonstrated a sincere intention or ability to implement the amendments. Further, plaintiffs who sue under the amendments face significant legal barriers, …

Table Of Contents, Table Of Contents Public Land & Resources Law Review

Public Land & Resources Law Review

No abstract provided.

Effective Access To Justice: Applying The Parens Patriae Standing Doctrine To Climate Change-Related Claims Brought By Native Nations, Elizabeth Ann Kronk

Public Land & Resources Law Review

No abstract provided.

Does The Alaska Constitution Provide Broader Protection For Taking Or Damage Of Property - An Analysis, Lawrence V. Albert

Public Land & Resources Law Review

No abstract provided.

The Colorado River And The Inevitability Of Institutional Change, Douglas Kenney, Sarah Bates, Anne Bensard, John Berggren

Public Land & Resources Law Review

No abstract provided.

Extending The Scope Of The Antiquities Act, Brent J. Hartman

Public Land & Resources Law Review

No abstract provided.

Present At The Creation: The 1910 Big Burn And The Formative Days Of The U.S. Forest Service, Michael C. Blumm

Public Land & Resources Law Review

A review of Timothy Egan's The Big Burn: Teddy Roosevelt andthe Fire That Saved America (Houghton Mifflin Harcourt, Boston, 2009).

An Express Reservation? An Analysis Of Reservations Under The Equal Footing Doctrine As Applied In United States V. Milner, Patrick Beddow

Public Land & Resources Law Review

No abstract provided.

Legal Compliance And Korea's Financial Services Market: A Strategic Approach, Young-Cheol Jeong

Washington International Law Journal

The purpose of this paper is to improve the compliance level in the Korean financial services market by proposing a more systematic approach to economic crimes. As one of the most important capital markets in Asia, the Korean financial services market has weathered well both the hardship of the Asian financial crisis and the challenges of the Great Recession. Thus, its policy directions and experience are valuable to other burgeoning capital markets around the world. This paper contributes to a better understanding of the compliance system in the Korean financial services market. Based on a literature review, this paper analyzes …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Introduction, Ken Oliphant, Richard W. Wright

Chicago-Kent Law Review

No abstract provided.

Canadian Medical Malpractice Law In 2011: Missing The Mark On Patient Safety, Colleen M. Flood, Bryan Thomas

Chicago-Kent Law Review

This paper surveys the current state of medical malpractice law in Canada, along with current evidence on adverse events in Canadian hospitals, medical clinics, and long-term care facilities. Though there is currently no "burning platform" to reform Canadian medical malpractice law, the authors raise concerns about the law's failure to deter medical malpractice, as well as concerns about access to justice issues facing victims of medical malpractice. Federal and provincial governments have tried to promote patient safety through various prevention strategies—for example, through the creation of Health Quality Councils, the dissemination of information on best practices, and tighter regulation of …

Medical Malpractice And Compensation In France, Part I: The French Rules Of Medical Liability Since The Patients' Rights Law Of March 4, 2002, Florence G'Sell-Macrez

Chicago-Kent Law Review

While the French Law of medical malpractice had been mainly based on the Civil Code provisions related to contract law, the Patients Rights' Law of March 4, 2002 set forth general principles regarding the responsibility of health professionals and health institutions which are now in the Code of Public Health. The relatively new Law has modified the legal basis for medical liability, which is now regarded as a "legal regime" that is neither contractual nor tortious. The Patients' Rights Law of March 4, 2002 not only has reaffirmed the principle of fault-based liability in medical malpractice cases, but also allows …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

The Story Of A Character: Establishing The Limits Of Independent Copyright Protection For Literary Characters, Samuel J. Coe

Chicago-Kent Law Review

Copyright law provides writers with a way to protect their original works of authorship, but courts often disagree over the scope of this protection and how far it can be extended for the fictional characters appearing within literary works. Characters like Holden Caulfield and James Bond have become extremely valuable forms of intellectual property, but even for such iconic figures it can be difficult to separate the character from the story to determine where one work ends and the other begins. To address this issue, the Second Circuit follows the "distinctly delineated" test, which asks whether a character has been …

The Spirit Of Nagpra: The Native American Graves Protection And Repatriation Act And The Regulation Of Culturally Unidentifiable Remains, Aaron H. Midler

Chicago-Kent Law Review

In March 2010, the U.S. Department of the Interior issued a final rule regarding the disposition of culturally unidentifiable human remains under the Native American Graves Protection and Repatriation Act (NAGPRA). The rule is controversial, as some commentators argue that the Secretary of the Interior lacks the authority under the statute to regulate these remains. This Note analyzes the legitimacy of the final rule in light of federal administrative law precedent as well as the origin and purpose of NAGPRA. It also discusses two well-known cases arising under the statute and the effect that the final rule will have on …

Laudable Goals And Unintended Consequences: The Role And Control Of Fannie Mae And Freddie Mac, Andrea Boyack

Faculty Publications

The United States is struggling to emerge from an era of loose mortgage underwriting standards – lapses in credit analysis that led to origination and securitization of toxic loans. The fallout has been crippling, costing borrowers their homes, investors their money, and the government its taxes.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) passed last summer was the first comprehensive effort to address the problems in the system that led – in sequence – to the subprime crisis, the housing crisis, and the financial crisis. The Dodd-Frank Act, which contains over 2,300 pages of legislation, …

Medical Malpractice In Austria, Bernhard A. Koch

Chicago-Kent Law Review

This article presents the Austrian law governing compensation for medical malpractice in an overview. After a glimpse at the healthcare and social insurance system, the regulatory framework is outlined, with an obvious particular focus on tort and contract law. Apart from the special case where informed consent is lacking, the various elements of a claim that patients may have mirror the general requirements of tort and contract liability in Austria, which is why the brief sketch may also serve to give at least some basic insight into that part of the legal system in general. Furthermore, peculiar approaches in handling …

Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner

Chicago-Kent Law Review

The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can …

Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso

Missouri Law Review

This Note will examine whether prior art found in a provisional patent application can (and should) act as prior art to defeat a subsequent application by a second inventor. In looking at this issue, this Note will ask if Giacomini can be reconciled with the principles and policies that underlie patent law. To do so, this Note will first review the facts and holding of Giacomini. Then this Note will survey the patent statutes, giving particular attention to those statutes that deal with priority and prior art. Next, this Note will examine the reasoning of the Giacomini court. Finally, this …

Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman

Missouri Law Review

Part II of this Article summarizes the current R&D crisis confronting the pharmaceutical industry and the accompanying drop-off in innovative output from this important technological sector. Part III explains Mr. Armitage's "view from industry," which attributes a significant causative effect to unpredictability in the patent system. Part IV provides two Lilly case studies involving generic challenges to two of the company's important drugs, Gemzar and Strattera, in which the company has suffered as a result of this unpredictability. Part V identifies three distinct forms of unpredictability in patent law: unpredictability caused by the proliferation of loosely defined standards rather than …

Crafting A 21st Century United States Patent And Trademark Office, David Kappos

Missouri Law Review

Good morning. It is a privilege to be here representing the United States Patent and Trademark Office (USPTO). I want to thank the Missouri Law Review for the invitation and for hosting me here today. Moreover, I want to commend the University of Missouri for convening this important conference. These are critical topics, and today I want to focus on the key role the USPTO will play in shaping patent protections in the future. But let me first congratulate the members from the Federal Circuit who are present today for thirty years of excellence in addressing the most fundamental of …

Pleading Panic: Pure Emotional Damages As Sickness Or Disease For Bodily Injury Claims, Joseph N. Blumberg

Missouri Law Review

On the surface, Derousse v. State Farm Mutual Automobile Insurance. Co. may be a relatively minor matter of statutory interpretation: Does Missouri insurance law require coverage for pure emotional distress caused by uninsured motorists? In answering the question, however, the court's generous rules of interpretation signal its recent willingness to expand recovery for emotional distress claims. Traditionally, Missouri took a conservative approach to allowing emotional damages in tort claims. Derousse is a stark example that the old regime is a relic.

To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd

Missouri Law Review

This Article examines the blurring of this interface in both the "procedural" and "substantive" contexts. Part I discusses the background and modem legal framework for classifying claim construction as a pure question of law that is answered prior to and separate from the issue of infringement. Part II analyzes the claim construction-infringement boundary in a procedural context by examining the stages of a case at which these inquiries are typically performed and the degree to which courts construe claims "in a vacuum," without reference to the accused product. This Part explains that courts are becoming increasingly accepting of and often …