Legal Ethics and Professional Responsibility Commons^™

Compliance Officers: More Jobs, More Responsibility, More Liability, Susan Lorde Martin

Notre Dame Journal of Law, Ethics & Public Policy

In response to a great deal of new rule making by federal agencies in the last few years, corporate compliance departments are becoming larger and more involved in businesses in an effort to eliminate regulatory violations and to reduce fines in the event of an offense. At the same time, chief compliance officers who head these departments are becoming increasingly concerned that they will be held liable for the actions of others at their companies merely because they are in charge of their companies’ compliance programs. This article looks at examples of laws that give rise to compliance mandates and …

The Endless Bummer: California's Latest Attempt To Protect Children Online Is Far Out(Side) Effective, Stephen J. Astringer

Notre Dame Journal of Law, Ethics & Public Policy

More so than any preceding medium, the Internet has provided users the ability to communicate quickly and without significant restrictions. Today’s children face the challenge of seemingly mundane activities, part of everyday life, that have the potential to ruin futures. A single status update on Facebook, post on Twitter, or video on YouTube can have lasting ramifications. Minors are not the only population to later experience post regret, but unlike politicians, athletes, or any other adults, youthful indiscretion will often lead to less prudent and thoughtful decision-making. Before nearly every person had an Internet-capable camera in their pocket at all …

The Need For Conditions Limiting The Use Of Legislative History In Statutory Interpretation: Lessons From The British Courts, Sylvia Costelloe

Notre Dame Journal of Law, Ethics & Public Policy

Statutory interpretation is of crucial importance for both lawyers and judges. A notably fertile source of debate is the use of legislative history for purposes of statutory interpretation, which gained particular momentum in the past century. Proponents of the use of legislative history in statutory interpretation argue that it is a valuable tool for interpreting ambiguous statutes. On the other hand, opponents such as Justice Scalia have argued that the only law that should govern is that which has been passed by a majority of the House and the Senate. The debate among American judges and scholars has largely centered …

Placing Al Gore On The Board: Accounting For Environmental Risk In The Corporate Governance Model, Blair M. Warner

Notre Dame Journal of Law, Ethics & Public Policy

Head to Coca-Cola’s website today and you will find something unexpected—a position statement on climate change: Across the Coca-Cola system, we recognize that climate change may have long-term direct and indirect implications for our business and supply chain. As a responsible multinational company, we have a role to play in ensuring we use the best possible mix of energy sources, improve the energy efficiency of our manufacturing processes and reduce the potential climate impact of the products we sell. The company was not always this focused on climate change and sustainability initiatives. Coca-Cola’s CEO, Muhtar Kent, explained to Forbes that …

Legal Myths Of Ebola Preparedness And Response, James G. Hodge Jr.

Notre Dame Journal of Law, Ethics & Public Policy

In March 2014, Ebola viral disease (“EVD”) emerged from several

West African countries as a substantial threat to global health.

Through a series of core legal powers pursuant to its declaration of a

public health emergency of international concern (“PHEIC”) on

August 8, 2014, the World Health Organization (“WHO”) averted a

global health disaster by requiring member countries to engage in mul- tiple public health interventions. These efficacious WHO-mandated

measures included implementation of border closures to limit the

spread of EVD within and outside of countries like Guinea, Liberia,

Senegal, and Sierra Leone. Industrialized nations, including the

United States, responded …

Applying Lessons From The Opioid Abuse Epidemic To Protect Consumers From Gray Market Biologics, Michael C. Barnes, Stacey L. Worthy

Notre Dame Journal of Law, Ethics & Public Policy

lmost 17,000 people die per year of overdoses involving prescription opioids, controlled substances prescribed to treat pain and addiction. As such, the Centers for Disease Control and Prevention (“CDC”) has deemed prescription drug abuse a national epidemic. In addition to opioids, several other classes of prescription medications have become prone to abuse, including stimulants and benzodiazepines. As many as twenty percent of college students have used stimulants at some point in their studies for nonmedical use, and the number of admissions to substance abuse treatment programs for benzodiazepine use nearly tripled between 1998 and 2008. And in 2011, benzodiazepines caused …

The People's Nih? Ethical And Legal Concerns In Crowdfunded Biomedical Research, Joshua E. Perry

Notre Dame Journal of Law, Ethics & Public Policy

Over the last decade, online crowdfunding has become a mainstream source of capital formation for a range of artistic and entrepreneurial endeavors. Low-barrier websites such as Kickstarter and IndieGoGo that fund production of a movie or recording of an album, in addition to charity conduits such as Kiva that facilitate the dissemination of microloans in the developing world, are trusted fundraising mechanisms that offer alternatives to traditional financing through banks and venture capitalists. Moreover, these models predicated on the solicitation of relatively modest amounts of money create a more egalitarian investment environment wherein donors can join the effort—and often receive …

Risk, Uncertainty, And "Super-Risk", José Luis Bermúdez, Michael S. Pardo

Notre Dame Journal of Law, Ethics & Public Policy

Risk is a pervasive feature of law and public policy. Decision-making in these domains often takes place in the absence of certainty and with awareness that errors may be made and predictions may fail. Within law—as within the social and physical sciences, medicine, economics, finance, and countless other domains—a primary focus of practical and scholarly inquiries is the extent to which risks can be measured and managed. In each of these domains, risk analysis typically employs the basic tools of decision theory (probability and utility) to measure the likelihood as well as the costs and benefits associated with possible outcomes. …

No Longer Left To Their Own Devices: Evaluating The Non-Traditional Medical Device Excise Tax, Kensington A. Wolgamott

Notre Dame Journal of Law, Ethics & Public Policy

When the United States federal government entered a shutdown in the fall of 2013, the budget crisis took center stage in the political debate. The Affordable Care Act (“ACA”) was one of the most contentious issues on the agenda, and among the bargaining chips in the discussion was the disputed issue of the medical device excise tax (“MDET”). The excise tax, imposed upon the sale of certain medical devices, has raised quite a bit of bipartisan opposition and has been up for repeal or reform over a dozen times to date. The increasing attention the tax has received since its …

Three's Company: A Constitutional Analysis Of Prohibiting Access To Three-Parent In Vitro Fertilization, J. Ravindra Fernando

Notre Dame Journal of Law, Ethics & Public Policy

The 1997 science-fiction film Gattaca tells the story of Vincent Freeman, a “God-child,” “de-gene-erate,” “faith birth.” The film unfolds in a not-too-distant future where genetic modification is commonplace and children’s characteristics and predispositions are routinely decided before birth. A rarity in this world, Vincent is conceived without any genetic modification and, consequently, is born with myopia and a congenital heart defect. His inferior genetic profile has banished him to a new subclass of society, so the only way to achieve his lifelong dream of becoming an astronaut is by impersonating a “valid”—a person with a healthy, genetically-engineered DNA.

A Prescription For The Future: Reverse-Payment Settlements In The Wake Of Ftc V. Actavis Pharmaceuticals, Audra J. Passinault

Notre Dame Journal of Law, Ethics & Public Policy

The pharmaceutical industry is a large and important part of the overall health care system in the United States. Drug innovation and improvement lead to safer and more effective pharmaceuticals able to treat a variety of diseases and ailments. But the quest by pharmaceutical companies to develop the next successful drug is an expensive venture: pharmaceutical companies spend more on research and development, relative to sales revenue, than almost any other industry in the United States. However, this innovation and investment is rewarded when the drug is granted a patent by the United States government, giving the developing company a …

Defending Data, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

Defending Data proposes a data-driven, systems-based approach to improving public defense in America.

Public defenders represent millions of defendants every year. Yet, public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense.

Defending Data begins by describing the …

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton V. Massey Coal Co., Lynne H. Rambo

Faculty Scholarship

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a …

Listening From The Bench Fosters Civility And Promotes Justice, Paula Lustbader

Seattle Journal for Social Justice

No abstract provided.

Talk Don’T Touch? Considerations For Children’S Attorneys On The Physical Touch Of Clients, Andrea L. Dennis

Scholarly Works

Researchers focused on the representation of children and attorneys for children have taken great pains to explore issues surrounding the attorney-child client relationship and recommend strategies and policies supporting positive development of the relationship. Notwithstanding the breadth of available information, almost no attention has been aimed at whether attorneys should physically touch their clients. This article fills that gap.

This Article consists of three parts. Part I describes the literature commanding attorneys for children to develop quality relationships with their clients. These works recognize that young clients seek good relationships with their attorneys, but that barriers to creating quality relationships …

Agreements To Alter The Limitation Period Imposed By U.C.C. Section 2-725: Some Overlooked Complications., Gregory Crespi

St. Mary's Law Journal

Abstract Forthcoming.

Cueing Democracy: Replacing The Texas Election Code's Title Prohibition., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Resolving Drug Manufacturer Liability For Generic Drug Warning Label Defects., Frank Scaglione

St. Mary's Law Journal

Although generic drugs are beneficial to consumers because they are offered as a more cost effective alternative to brand-name prescriptions, brand-name manufacturers are vulnerable to potential lawsuits because of generic drugs. Under the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), generic manufacturers are able to quickly enter the market following the termination of a brand-name drug’s patent. As a result of the Hatch-Waxman Act, 75% of all drugs on the market are generic. The Hatch-Waxman Act, however, also requires generic drug manufacturers to duplicate the brand-name drug’s warning label. As an unintended consequence, injuries have …

Texas Inventory Tax: Appraisal Districts' Misunderstanding Of The Law Causing Texas Retailers To Pay The Price., Timothy Johnson

St. Mary's Law Journal

Abstract Forthcoming.

Employee Recourses To Manager-Revealed Private Health Information., Molly Thomson

St. Mary's Law Journal

Abstract Forthcoming.