Showing papers by "Georgetown University Law Center published in 1998"

The Law and the Public's Health: A Study of Infectious Disease Law in the United States

Abstract: Law plays essential roles in public health. Law defines health officials' jurisdiction, and specifies how they exercise their authority. It is a tool of public health work used to establish norms for healthy behavior. Policymakers use the law's language of rights, duties and justice in the most important social debates about public health taking place in legislatures, courts and administrative agencies. This article examines the subject and definition of public health, reviews the core functions of public health as they relate to law, identifies challenges confronting communicable disease control, surveys the current landscape of state communicable disease control law, and proposes guidelines for reform of state law to satisfy both legal and public health critiques. The subject of public health. At a minimum the goal of public health is to attain the highest level and widest distribution of physical and mental health that a society reasonably can achieve within the limits of resources available. To effectively combat complex disease threats, the public health approach to disease control must evolve from the microbial, to the behavioral, to the ecological approach. Core functions of public health and the law. Building on the Institute of Medicine's important 1988 study The Future of Public Health, the article identifies the core public health functions necessarily covered by law as: 1) health promotion and disease prevention, 2) assessment, data collection and analysis; 3) provision of medical services; and 4) leadership and policy development. Challenges facing communicable disease control. Health officials must overcome substantial challenges to meet the needs of the public for protection from communicable diseases. These include structural issues such as their limited jurisdiction, popular apathy about public health goals, disease-associated stigma and social hostility that may interfere with effective public health work, and the public's distrust of government health officials. Public health officials must also contend with a crumbling pubic health infrastructure, emergence and re-emergence of old and new disease threats, and changes in the health care environment including managed care and shifting of some disease prevention and surveillance activities from the public to the private sector. Survey of current public health law. Public health law in the United States is ripe for reform. Existing laws often represent multiple layers of provisions from the late 19th and early 20th centuries enacted in response to epidemics of communicable disease. Older statutes do not reflect modern understandings of disease transmission and do not conform to current constitutional or statutory requirements. Proliferation of disease-specific statutes create redundancies in the law that both foster confusion and expend valuable resources. Laws, both old and new, may harbor ambiguities that interfere with public health officials' ability to identify, prevent, and respond to threats to the public's health. State provisions may have weak privacy protection for some types of public health data. Guidelines for reforming public health law. Public health law should: 1) define a broad mission of public health authorities to prevent and control communicable diseases through interventions at the microbial, behavioral and ecological level; 2) be based on uniform provision that apply equally to all communicable diseases, eliminating whenever possible disease-specific statutes; 3) recognize voluntary cooperation as the primary way to obtain compliance with public health measures; 4) base use of compulsory powers on a demonstrated threat of significant risk; 5) provide procedural due process protections; 6) provide a range of options for public health officers including a graded series of alternatives and require use of the least restrictive alternative that will accomplish the public health goal; 7) provide strong privacy protections based on fair information practices, limited disclosure of data, and monitoring of health department practices and substantive justification for data collection.

Lochner in Cyberspace: The New Economic Orthodoxy of 'Rights Management'

Abstract: The economic vision embodied in Lochner v. New York is alive and well on the digital frontier. Its premises ? the sanctity of private property and freedom of contract, the sharply delimited role of public policy in shaping private transactions, and the illegitimacy of laws that have redistributive effects ? undergird a growing body of argument and scholarship concerning the relative superiority (as compared with copyright) of common law property and contract rules for protecting and disseminating digital works. In their contemporary incarnation, these premises are embedded in the rhetoric of economic efficiency. Their proponents argue that because digital networks reduce market destroying transaction costs, the most efficient legal regime, measured by its success at inducing the creation of digital works and increasing consumers? access to information, is that which permits copyright owners to maximize their control over the terms and conditions of access to and use of "their" digital property. The article argues that the economic case for enhanced author/owner control is overly simplistic and unconvincing. It is based on an essentialism about the nature of "contract" and "market" that is manifestly unsuited to mass-market transactions, on a reflexive and unsubstantiated distrust of the legislative process as compared with the market, and on assumptions about the nature of "property" and the best ways of managing it that are wholly unproven and arguably unjustified in the case of creative works. Given the public good nature of creative and informational works and the unpredictable pathways of creative progress, there is every reason to believe that a limited-ownership regime is better, not worse, at maximizing digital works? value. Certainly, the proponents of a private-law approach to digital intellectual property rights have not met their burden of showing otherwise. The article then lays the foundation for a more sophisticated economic model of information markets and digital intellectual property rights. Drawing upon insights supplied by institutional, welfare-theoretic, and neo-Marxian economics, it argues that: (1) at least where non-price terms are concerned, consumers of mass marketed digital works are more likely to experience a relative equality of bargaining power vis-a-vis content owners in the legislative arena than in the market; (2) allowing content owners to internalize the uncompensated benefits generated by creative and informational works under the current limited entitlements regime likely would result in underproduction of those works that produce significant shared social benefits; and (3) the choice between such a regime and the current one implicates preferences about the conditions of individual and social self-definition that are not capable of expression and effectuation through the market. Much work remains to be done in each of these areas. However, the article concludes that under a broader conception of economic theory and of social welfare, society may legitimately choose to adopt and institutionalize a regime of limited entitlements in digital works.

Selling Hope, Selling Risk: Some Lessons for Law from Behavioral Economics About Stockbrokers and their Sophisticated Customers

Abstract: Disputes involving the sale of risky securities to apparently sophisticated customers arise frequently, and pose vexing legal problems. This article draws from the literature on psychology and economics to develop a rich descriptive account of investment decision-making by both individual and institutional investors, and analyzes the temptations that brokers face to exploit individual cognitive and motivational slack and (in institutional settings) moral hazard problems that may also be subject to denial and rationalization. It then turns to normative questions involving issues such as the treatement of brokers as fiduciaries, the duty to read, and the nature of the brokers' risk disclosure obligations.

Should Government Intervene To Protect Nonprofits

Abstract: PROLOGUE: Few health policy debates raise the ire of participants to the extent that the nonprofit/for-profit conversion debate does. Adherents to both sides of the issue claim everything from econ...

Preserving Monopoly: Economic Analysis, Legal Standards and Microsoft

Abstract: This paper examines a number of issues in the economics and law of leverage and monopolization through the lens of the Microsoft case. The paper explains how Microsoft's practices can be divided into two categories -- exclusivity and incompatibility. This exclusionary conduct has the effect of preserving its operating system monopoly from the threat of competition, a characterization which does not violate the single monopoly profit theory. After carrying out an economic analysis of this exclusionary conduct, the paper then uses a decision theoretic approach to evaluate alternative legal rules for governing such alleged monopolizing conduct.

The New Normativity: The Abuse Excuse and the Resurgence of Judgment in the Criminal Law

Abstract: This article reviews Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? by James Q. Wilson (1997).There is growing interest within the academy in reviving the "normative" in criminal law scholarship. Enter a recent book, Moral Judgment, by the distinguished criminologist James Q. Wilson. Professor Wilson's work prompts the question: What is meant by the term ''judgment"? Considering three different models -- judgment as community, judgment as character, and judgment as critique -- this review argues that Professor Wilson's idea of judgment both departs from the "new normativity" in existing scholarship and shows how easily ''judgment" may stand in for partial aims. Professor Wilson argues that the "abuse excuse" is the product of modern social movements that make some defendants, like battered women, more attractive "victims" than others. For these defendants, Wilson argues, the law seeks to explain rather than judge their behavior. Unfortunately, when one comes to look at the particular defenses that Wilson embraces as proper ''judgments" and rejects as poor "explanations," Wilson's theory begins to raise serious questions. For example, although Wilson is particularly critical of battered women's claims, he leaves out important parallels to excuses typically raised by men under the rubric of a well-known and long-standing defense -- provocation. This selectivity, the review argues, not only betrays Wilson's judgment as the embrace of tradition for tradition's sake, but also tells us something important about the "abuse excuse." It tells us that the danger to our criminal justice system does not lie in a particular set of modern excuses, nor modern social movements like feminism, but in a failed theory of excuse.

Managed Care and the Health of the Nation

Abstract: The trend toward managed care presents promising opportunities for improving the health of large populations. Capitated financing arrangements and performance-based reimbursements, in theory, create imperatives for these plans to promote behavior that reduces health risks and to emphasize preventive services that may forestall costly future medical treatments. By extension, healthier communities minimize the assumption of risk and medical resource utilization, particularly as new members join a particular health plan. Managed care can further improve the health of the nation by eliminating a serious structural deficiency in public health. These organizations, rather than governmental public health agencies, are more closely associated with the health of the people and, thus, are better positioned to observe and influence personal behavior, identify clusters of diseases and injuries within the enrolled population and, through investigation, find out what caused them. The authors suggest that the private provision of certain public health functions such as clinical prevention and personal medical services should result in efficiencies and cost-savings, thereby allowing public health to fulfill its quintessential role of developing population-based strategies to identify health risks and to improve behavioral, environmental, social and economic conditions that affect the health status of wider populations. A recognition of managed care's stake in public health does not, however, resolve the complex issues of how to achieve a redistribution of resources to focus more on prevention and community public health services. The reality is that managed care's norms and practices emphasized short run profits, while returns on investment in community health are profitable in the long run. The authors conclude that the basic power or obligation of organized society to protect and preserve the health of populations justifies government action to change the incentive structure. Through well-conceived delegations, incentives and regulations, managed care can complement government public health activities to maximize societal welfare. Further, the authors argue that managed care organizations have independent social and ethical obligations to add a community component to their activities.

Temporary Protection: Towards a New Regional and Domestic Framework

Abstract: During the past thirty-five years, the United States has seen the direct influx of thousands of individuals leaving politically unstable countries. While some seeking entry have proved themselves to be refugees and obtained permanent protection in the United States, far more, including a large number of people fleeing civil war, natural disasters, or comparable forms of upheaval in their home countries, have failed to demonstrate that they would be targets of persecution. Yet, their return to their home countries has been complicated by the very circumstances that led to their flight: conflict, violence, and repression. Over time, the United States developed a series of ad hoc responses that protected such individuals, culminating in the Immigration Act of 1990 (“IMMACT”), which provided legislative authority for Temporary Protected Status (“TPS”). Nevertheless, after eight years, many problems remain in the application of the law. Solving these problems will contribute both to better immigration control and more humane responses to future crises. Current policies fail on two accounts. First, the temporary protection provision in the law generally has failed to protect the vast majority of those in danger as a crisis develops and unfolds. If the United States government protects significant numbers at all, protection is provided outside the confines of the United States. Even so, the mechanisms for responding extraterritorially are not well developed. Second, current policies regarding protection in the United States do not provide the control mechanisms to ensure that protection is not abused and that return, when appropriate, is effected. The choice to admit people for temporary protection has been a difficult one for the United States for two main reasons: the lack of control over entry; and the inability to implement a fair but firm end game. These constraints together with the fear of litigation challenging domestic protection regimes have led policymakers to keep protection seekers offshore, such as on Guantanamo, or to return them directly to countries they fled without providing an opportunity for them to present requests for protection. But not having a fully developed regional or domestic capability for addressing these complex movements comes at a considerable cost. Estimates for the agency costs of handling the 1994 Cuban exodus through the use of offshore safe havens were more than $500 million. Further, an immigration system that cannot fairly and efficiently process protection seekers lacks credibility for which it pays a significant public cost.

What Will We Do When Adjudication Ends? A Brief Intellectual History of Adr

Abstract: This essay is an introduction to a symposium on Alternative Dispute Resolution. The essay reviews the development of scholarship, theory development, teaching and policy analysis in the law schools and through related disciplines, first in negotiation and then more broadly in alternative dispute resolution. The essay summarizes some of the key "propositions" of learning derived from conflict resolution theory and practice at the present time. The essay also pays tribute to scholars in the field who have recently died and reviews, briefly, their contributions to the field.

How Changes in the Legal Profession Reflect Changes in Civil Procedure

Abstract: Scholarship criticizing the legal profession generally blames partisanship for attorney excesses on behalf of clients. Moral philosophers argue that attorney partisanship on behalf of clients is inherently unethical, as it leads attorneys often to ignore the interests of third parties and to advance whatever outcomes benefit their clients, without pausing to consider whether a desired outcome is best for the law or society. Other scholars concede that partisan attorneys might, in theory, serve the law at the same time they serve their clients, but argue that changes in law practice have intensified partisanship and thereby have led attorneys to stray from this ideal role. These scholars attribute a perceived decline in the ethical stature and social utility of the legal profession to social changes that provide attorneys with ever greater incentives to put aside their scruples and do their clients' bidding. Neither set of scholarship provides a complete account of attorney excesses on behalf of clients because both overlook the constraining force of the judicial perspective. To succeed in a partisan role -- i.e., to be an effective adviser or advocate -- an attorney must consider his client's case not simply from the client's selfish perspective, but also from the perspective of the neutral judge who will decide the case after taking into account the interests of all concerned and trying to do what is best under the law. The prospect of a judge applying law to the client's factual scenario should (at least in theory) constrain attorney partisanship in transactional practice and litigation, ensuring that attorneys do not ignore the interests of third parties or stray too far from what is best for the law. If critics are correct that there has been a decline in the social utility of the legal profession, this decline is attributable not only to attorneys' partisan incentives, but also to a decline in the constraining force of the judicial perspective brought about by changes in civil procedure. The Federal Rules of Civil Procedure, as amended over the years, have diminished the importance of judicial evaluation of the merits of lawsuits in two related ways. First, liberal pleading and discovery under the Federal Rules have altered litigation dynamics by making lawsuits more expensive and inducing settlements based on this expense. Second, the expansion of issues associated with liberal pleading and discovery has increased litigation uncertainty, making it difficult for attorneys to factor judicial application of law to fact into the value of a case. Because changes in civil procedure and in the nature and force of the judicial perspective help to explain a perceived decline in the legal profession's social value, scholars concerned about the profession's decline should give serious consideration to procedural solutions. If the goal is to lead attorneys to pursue justice, procedural reform aimed at elevating judicial application of law would be more effective than merely revising ethical standards, and yet less daunting than revamping the social institutions that today appropriately lead attorneys to favor their clients' interests over others. Procedural reform could lead attorneys to consider the interests of justice not because it is the right thing to do, but rather because it is what a judge will do before deciding their clients' fates. Further consideration should be given to procedural reforms that would standardize judicial influence over the resolution of lawsuits and elevate the importance of judicial application of law to fact. Of the many avenues available toward achieving this goal, the Article offers three possibilities that may be worthy of further attention. First, in order to encourage judges consistently to utilize partial summary judgment as an issue-narrowing mechanism, Rule 56 could be amended to require judges to provide reasons whenever they deny summary judgment. A second reform might discourage weak claims and defenses by empowering judges to shift attorneys fees for positions that survive summary judgment but are contradicted by the weight of evidence disclosed during discovery. Finally, in order to ensure that excessive discovery expenses do not induce cost-based settlements prior to a judicial narrowing of issues, a third reform could require judges to identify at the outset issues that are candidates for summary judgment or fee shifting and to limit early discovery to those issues only. These three reforms would aim to eliminate, or at least mitigate, some of the tactical advantages that litigants today may gain from maintaining weak or meritless positions during pretrial.

Universalism, Liberal Theory, and the Problem of Gay Marriage

Abstract: Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" assumption: because each one of us is rational, each one of us is not only competent to, but best-equipped to formulate and act on his or her own individually held conception of the good life. We are each capable of deciding for ourselves what to think, believe, and do within the sphere of self-regarding behavior. We all share in this capacity equally. Whatever may be our otherwise terribly and radically unequal endowments, we share equally the capacity to decide for ourselves what is our own best conception of our individual self, future, and interests.There can be no doubt that this liberal understanding of our nature, and the wide range and bewildering variety of interpretations of constitutional rights and norms that it undergirds, have prompted moments of very real moral progress over the course of the second half of this century. Surely it is fair to say that the acknowledgment of our universality lying at the heart of so much of Fourteenth Amendment jurisprudence over the last forty years has not only prompted the creation of a more equal and free society, but has also enabled us to at least glimpse the expansive and inclusive community that is equality's natural complement. There can also be no doubt, however, that these revolutionary, expansive, and liberal changes in our self-understanding have left serious difficulties in their wake, as scores of critics of liberalism and of legal liberalism, in particular, have made clear over the last thirty years or so. I will focus on what strikes me as the two most intractable problems.Generally, I propose that liberalism fails to take seriously the differences between groups of people, as identity theorists claim, and the interconnections and interdependencies of all of us, as communitarians insist, and that the failure to do so has had a profound and negative effect on our constitutional law and rhetoric. I suggest it has significantly undermined the classic liberal arguments for many of our most vulnerable and controversial contemporary liberal rights and entitlements. Nevertheless, it would be wrong to jettison either the universalist or individualist aspirations of liberalism, or the liberal legal defenses of the vital and embattled rights that tenuously follow from those assumptions. Rather, in theory, a friendly amendment to liberalism's core convictions is needed. Where a group seeking a right is different in some way-for example, differently vulnerable to the harms that flow from sexual assault, or differently committed to child-raising, or differently vulnerable to hate speech-what is needed is a showing that the harms occasioned by sexual assault and hate speech are real and demand a response, or that child-raising is a vital human activity and demands greater communal support. Similarly, where an individual right of self-governance impacts social, intimate, or structural connections between persons, as they almost invariably do, we need to show that the interaction is for the good: that abortion rights strengthen the community and the family despite the severance of the connection between mother and fetus; or that birth control, abortion rights, or same-sex marriages would constitute an improvement in, not a threat to, the bonds of tradition tying our modern institution of family to our history and our larger society. In the last section of this Essay, I will attempt to apply my friendly amendment to liberal legalism to the current debates swirling around the problem and promise of same-sex marriage. I will argue, in brief, that the more or less standard liberal arguments for gay marriage are flawed in the ways described above.

Ads2kids.Com: Should Government Regulate Advertising to Children on the World Wide Web?

Abstract: The US has laws and regulations to protect children from excessive and unfair advertising on television, in connection with 900 numbers and in schools This article argues that similar protections are needed on commercial sites targeted to children on the World Wide Web Specifically, the article considers the extent to which the same underlying policy concerns regarding advertising to children are present in web advertising, suggests why reliance on FTC enforcement of existing law and industry self-regulation is insufficient, and identifies key elements to be included in legislation

Vertical Mergers and Monopoly Leverage

Abstract: Monopoly leverage involves using a monopoly in one market to achieve market power or monopoly in a second adjacent market. The concept of monopoly leverage has a long history in antitrust. Bowman, Bork , and other Chicago-school commentators successfully criticized the simple theory of monopoly leverage as failing to recognize that there may be only a single monopoly profit available to the monopolist, even if it integrates. More recent economic theories have addressed the single monopoly critique and have demonstrated a variety of circumstances in which monopoly leverage is a rational strategy that harms consumers. This contribution to the New Palgrave Dictionary of Economics and the Law sets out this analysis and a methodology for evaluating anticompetitive allegations involving monopoly leverage and vertical mergers.

Decision Theory and Antitrust Rules

Abstract: There is ongoing controversy over the proper antitrust decision process that regulatory commissions and the courts should use to evaluate various restraints. This controversy entails the question of whether to analyze conduct under a per se rule, the classical rule of reason, the quick look, the inherently suspect standard, or some other truncated rule of reason standard. This article applies decision theory to this issue of standards formulation. Decision theory sets out a process for making factual determinations and decisions when information is costly and therefore imperfect. The paper is a methodology for determining when to make decisions on the basis of current information, and when to gather and consider further information before making a decision. It then applies that methodology to the formulation of antitrust standards.

Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures

Abstract: Among the puzzling aspects of the Breard episode was the Clinton administration's claim that the decision whether or not to comply with the Order of the International Court of justice requiring the postponement of Breard's execution lay exclusively in the hands of the Governor of Virginia. The ICJ's Order provided that "[t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings." The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, there would be no authority in the federal Government to require a postponement of the execution.

Toward Humanistic Theories of Legal Justice

Abstract: In an oft-quoted aside, Justice Holmes once remarked that when lawyers in his courtroom make appeal to justice, he stops listening: such appeals do nothing but signal that the lawyer has neither the facts nor law on his side, or worse, that he is ignorant of whatever law might be relevant. Holmes's remark has not gone unheeded. Holmes's legacy, in part, is precisely this lapse: we don't have, or teach, a guiding theory of legal justice, nor do we have, or teach, a family of competing theories of legal justice, that might inform our work in law, at least as that work continues to focus on the work of courts. Nor do we have, consequently, a specifically humanistic conception of legal justice that might move adjudication in a direction conducive to the well-being and just social arrangements of the species. There are, of course, two striking exceptions to this general claim. Working in part off a Holmesian legacy, Richard Posner and other like-minded legal economists have persuaded a sizeable percentage of two generations of lawyers that justice is wealth and wealth justice, and that this is basically all they need to know: with justice so defined, and a few analytic tools, virtually any legal problem that may confront a common law judge yields a more or less definite and wealth-maximizing solution.' The judge interested in pursuing justice, and the lawyer interested in practicing it, need only seek the wealth-maximizing resolution of any legal dilemma. And, Ronald Dworkin, around the same period of time convinced a sizeable percentage of the same group of lawyers that justice is not essentially distinct from law itself, at least when read in the best possible light. Justice is law, one might say, and law justice, and that is all we need to know. The judge interested in pursuing justice, and the lawyer interested in practicing it, should seek and will find it in the law itself -- there is no meaningful moral norm, independent of the legal materials, to which he or she might turn for guidance.There are familiar problems with both the Dworkinian and Posnerian reduction of justice to law on the one hand and wealth on the other: a law, a legal system, a legal pronouncement, a statute or a constitution, might be terribly unjust, in which case the romantic Dworkinian identification of justice with law generously understood will do little but blind us to state-sponsored injustice, and the simple pronouncement to maximize wealth, although it unquestionably quenches a thirst for certainty, might frustrate rather than serve the ends of a just order, in which case justice surely cannot be equated with wealth. I do not wish to rehearse or expand these objections here. All I want to stress is the simple point that these highly problematic, counter-intuitive, and, in some cases, seemingly cruel understandings are the only theories of legal justice -- the justice that courts and lawyers and judges are committed to pursue -- that have emerged, so to speak, from a point of view internal to the profession itself, and that accordingly might serve the needs of the profession. They have dominated the discussion to the extent that they have only because nature abhors a vacuum. Nevertheless, for all their power, and even given the dearth of alternatives, the Dworkinian and Posnerian understandings of justice, stated in their starkest and truest terms, have failed to persuade all but a few of us.

Efficiencies in Defense of Mergers: 18 Months After

Abstract: In this overview of the new role of efficiencies in merger analysis, Chairman Pitofsky reexamines early critiques of the revised efficiencies section in the Merger Guidelines in light of four recent decisions from the federal courts. These early critiques came from both ends of the antitrust spectrum. Some enforcement officials contended that the revised section would make efficiencies the touchstone of merger analysis, opening the door to efficiency claims that would be either exaggerated or unrelated to consumer welfare. Members of the defense bar suggested that the revised section on efficiencies was so circumscribed by qualifications that the introduction of the ?revised? defense would make no practical difference. Chairman Pitofsky contends that experience over the last 18 months has revealed that both sets of critiques were mistaken. Although efficiency claims have rarely trumped a strong showing of anticompetitive effects either at the agencies or in court, the agencies have incorporated valid efficiency claims into their exercise of prosecutorial discretion and have not challenged their legitimate role in merger litigation. And although the agencies have taken efficiency claims more seriously, they have not allowed potentially efficient mergers to proceed when there is a strong likelihood of serious anticompetitive effects. Thus, the revised efficiencies section of the Merger Guidelines has accomplished its four primary objectives -- incorporating efficiencies directly into the assessment of likely competitive effects; testing efficiency claims against realistic and practical alternatives, not against hypothetical or improbable scenarios; requiring a stronger showing of greater efficiencies for mergers that could produce significant anticompetitive effects; and defining more clearly which efficiencies can be balanced against potential anticompetitive effects. Chairman Pitofsky then examines how courts and the agencies have addressed efficiency claims in four recent district court decisions. He cites FTC v. Staples, Inc. as a case where the court rejected efficiency claims that were exaggerated when measured against internal documents. Chairman Pitofsky also points to Staples as a case where leading firms in rapidly expanding markets will have difficulty showing that efficiencies such as improved advertising and greater geographic coverage could not be achieved through internal growth. Chairman Pitofsky then examines the assessment of efficiencies in United States v. Long Island Jewish Medical Center, where the court credited efficiency arguments advanced by merging hospitals. Special circumstances, including the hospitals? not-for-profit status and their agreement with the New York Attorney General to pass post-merger efficiencies on to consumers, made the hospitals? arguments more credible. Next, Chairman Pitofsky turns to the analysis of efficiencies in FTC v. Tenet Healthcare Corp., where the court rejected efficiencies that two merging hospitals could have achieved unilaterally and efficiencies that would have arisen only in separate relevant markets. The final opinion that Chairman Pitofsky discusses is FTC v. Cardinal Health, Inc., where the court acknowledged that two drug wholesaler mergers could produce efficiencies, but ultimately determined that continued competition among the four firms would continue to produce consumer benefits without risking anticompetitive effects. Chairman Pitofsky contends that Cardinal Health is a useful and proper reminder that although entry and efficiencies have assumed a greater role in merger analysis, courts and agencies will continue to examine them in light of market shares and potential anticompetitive effects. Acknowledging that any definitive analysis of the efficiency claims would be premature, Chairman Pitofsky offers three interim conclusions about efficiencies under the revised section of the Merger Guidelines. First, he points out that efficiencies will rarely overcome strong proof of likely anticompetitive effects. Second, he observes that efficiency claims are more likely to be persuasive when they are not exaggerated, and that unrealistic efficiency claims may undermine credibility with enforcement officials and judges. Finally, Chairman Pitofsky predicts that defense counsel will become more comfortable and effective over time in addressing efficiency claims to enforcement officials and courts.

Judges as Advicegivers

Abstract: Since Bickel, the Court has been understood as having a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. This Article contends that there is a fourth power for courts, called advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, unconsciously at times, consciously at others, and this Article reveals some of these instances and seeks to provide a normative justification for the practice. The Article breaks down advicegiving into several categories, and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for coordinate branches, while also serving goals of federalism, enhancing political accountability, and encouraging judicial honesty. The Article begins with a historical discussion of advicegiving, centering largely on the Founding. It then goes through four main examples from the 1996 Supreme Court Term, and contrasts those cases with several others. In each of the four cases, I criticize the majority for ignoring the model, and use the case to show how advicegiving could have enhanced structural fidelity and governmental functioning. In Clinton v. Jones, I argue that the Court should have asked Congress for a clear statement about the meaning of the relevant statutes. In the right-to-die case Quill v. Vacco, I argue that before stepping into the controversy on its own, the Court should have asked the New York state courts to resolve the thorny questions about the meaning and reach of the state statute. By seeking a state court determination, the Court could have planted the seeds of a productive federal-state conversation about the state statute. In the death penalty case Gray v. Netherland, I show how federal courts can single out particularly egregious death penalty cases and call on governors to review them for commutation. This strategy is particularly appropriate when procedural bars are lurking in the case; a court opinion can explain those procedural bars, thus preventing state officials from hiding behind the imprimatur of a court's decision not to interfere with an execution. In the last case, United States v. Printz, I explain why courts that strike down legislation should provide blueprints of constitutional methods to achieve the same policy goals. Each of these cases illustrates a separate type of advicegiving, and reveals some of the virtues of the model. The Article concludes by considering some of the objections to advicegiving, and explains why advicegiving is a viable alternative to the Court's other powers in appropriate cases.

Using Leverage to Preserve Monopoly: Discussion of Katz and Shapiro Paper

Abstract: This paper is a conference discussion of the Katz and Shapiro article "Antitrust Analysis of Software Markets," as part of a recent Progress and Freedom Foundation Conference titled, "Competition, Convergence and the Microsoft Monopoly." The paper analyzes some aspects of exclusionary vertical conduct and applies that analysis to the Microsoft-Netscape "browser wars" and the Microsoft-Sun "Java wars." The main issue stressed is the applicability of the single monopoly profit theory to monopoly leveraging allegations. in the examples, monopoly leveraging into a second market may be a rational anticompetitive strategy to preserve or enhance the firm's monopoly power in the first product.

Night and Day: Coeur d’Alene , Breard , and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine

Abstract: The Supreme Court's decision in Edelman v. Jordan has been read to establish a distinction between suits seeking prospective relief from a state official's violation of federal law (which are not barred by the Eleventh Amendment under Ex parte Young) and suits seeking retrospective relief from the state (which are barred by the Eleventh Amendment, even if the officer is the defendant). Commentators and the lower courts have long had difficulty understanding and applying the distinction. Until recently, the principal effect of the Edelman line of cases has been to bar suits seeking damages and similar monetary relief from the state. In two recent Supreme Court cases, Idaho v. Coeur d'Alene Tribe of Idaho and Breard v. Greene, the Supreme Court has denied relief on Eleventh Amendment grounds in suits seeking nonmonetary relief that appeared to be prospective in nature. In different ways, these decisions invite a reconsideration of the prospective-retrospective distinction. This article argues that the exception to Ex parte Young recognized in the Edelman case originally extended only to retrospective monetary relief. Gradually and without explanation, this exception was extended in dicta to encompass all retrospective relief. A rule comprehensively barring retrospective relief but permitting prospective relief is problematic in at least two ways. First, the concepts of prospectivity and retrospectivity are highly indeterminate. For example, the latter concept is amenable to the construction given to it in the Breard case, in which it was held to encompass a request for an injunction halting an allegedly unlawful execution scheduled to take place in the future. Ex parte Young itself demonstrates the error of this counterintuitive holding, but what is striking is the plausibility of the holding as an application of the Supreme Court's test for distinguishing prospective from retrospective relief. Second, a comprehensive prospective-retrospective test cannot be squared with the results the Supreme Court has reached. This article argues that the Edelman exception to Ex parte Young should be confined to its original scope. A rule excluding from the Ex parte Young exception only suits seeking retrospective monetary relief would explain the decided cases, would be easily administrable, and would better cohere with other aspects of the Court's jurisprudence in this area than would a comprehensive prospective-retrospective test or other possible alternatives.

Piercing the Veil of Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and Disclosure in Partner Notification Contact Tracing, the 'Right to Know,' and the 'Duty to Warn

Abstract: For centuries, persons have endeavored to keep their sexually-transmitted infections hidden from the social world -- from their sexual partners, families, and communities. Secrecy nurtures disease for it provides an environment conducive to the spread of infection. Sex partners are unaware of the risks, and public health authorities cannot track the epidemic. Not surprisingly, one of the earliest recorded public health strategies for sexually-transmitted disease (STD) prevention was to pierce the veil of secrecy surrounding these hidden diseases by notifying sexual partners ("contacts") of infected patients ("index" cases). From its widespread use during the 1930's, the notification of sexual partners with the assistance of public health authorities remained an accepted part of the law and practice of STD control. The modern public health construct known as "partner notification" is often confused with other legal and ethical duties. Known collectively as the "duty to warn," these judicially-imposed, common law obligations are comprised of two duties based on distinct legal foundations: (1) the duty of infected persons to disclose to partners the risk of exposure and (2) the duty of health care professionals to warn partners of harm resulting from exposure to infected patients. These duties constitute two other meanings of partner notification besides contact tracing. To public health practitioners, the traditional practice of partner notification -- its widespread, persistent, and systematic use over time in relation to traditional STDs or HIV/AIDS -- justifies its continued implementation. Despite its widespread use, partner notification has not been systematically analyzed. The authors examine partner notification from legal, ethical, empirical, and economic perspectives. Under this analytical structure, they find that partner notification is not justified as a national public health practice. Although its basis in moral tradition is sound, the lack of demonstrable proof of its effectiveness, both empirically and economically, renders it unacceptable for widespread use in the field of public health where scientific support of usefulness as a preventive strategy is crucial. The authors support and discuss alternative models for STD prevention and control that are both effective and protective of individual liberties and privacy.

Expanding the Zone, Tilting the Field: Zone of Interests and Article Iii Standing Analysis after Bennett V. Spear

Abstract: This article explores the implications of Bennett v. Spear for public law standing. The unanimous Bennett Court, in its opinion by Justice Scalia, applies slightly reformulated but ultimately manipulable "zone of interests" criteria; the opinion also utilizes a new framework for standing analysis under Article III of "procedural rights" claims. The Bennett Court looks for case- specific allegations that an alleged procedural misstep "alters the legal regime" by having "coercive" and "virtually determinative effect." This new framework arguably resolves a second (but unbriefed to the Court) split in the circuits over standing for "procedural rights" plaintiffs. Bennett's new framework threatens to turn the overlapping "redressability" and "traceability" standing criteria into a substantial hurdle for plaintiffs claiming an agency procedural misstep, and undercuts the instructions provided by the Court in Lujan v. Defenders of Wildlife. Bennett gives no apparent weight to implicit legislative valuation of procedures. Professor Buzbee argues that Bennett is a problematic decision that can and should be narrowly construed to give appropriate heed to legislative judgments about the importance of procedures associated with a regulatory goal. The article closes by arguing that half of Bennett's new redressability-traceability test--the "alters the legal regime" language--offers a means to harmonize disparate standing treatment of plaintiffs alleging reverse discrimination and more typical administrative law or environmental law claims, and also could ensure that courts play a role in policing agency actions under diverse initiatives designed to enhance regulatory flexibility.

Apportioning Basis: Partial Sales, Bargain Sales, and the Realization Principle

Abstract: This article defends apportioning basis on partial sales generally, it also concludes that apportionment should not apply to a bargain sale.