Showing papers by "Georgetown University Law Center published in 2000"

Competitive Effects of Partial Ownership: Financial Interest and Corporate Control

Abstract: This paper presents an economic framework for analyzing the competitive effects of partial ownership interests. The competitive effects of partial ownership depend critically on two separate and distinct elements: financial interest and corporate control. These two factors affect the incentives of the acquiring firm and the firm in which it acquires a partial ownership interest. The paper defines and analyzes a variety of different corporate control assumptions such as silent financial interest, total control, and Coasian joint control and applies the framework to horizontal and vertical joint ventures. Partial ownership forces the analyst to grapple with the question of the degree of control or influence that partial owners have over managers, how partial ownership translates into control or influence, and how this influence translates into competitive effects. The paper also develops methods for quantifying the effect of partial ownership interests and joint ventures on competitive incentives, using the modified HHI and a price pressure index (PPI) that we define.

Examined Lives: Informational Privacy and the Subject as Object

Abstract: In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore established understandings of property, limit individual freedom of choice, violate principles of rational information use, and infringe data processors' freedom of speech. In this article, Professor Julie Cohen explores these theoretical challenges to informational privacy protection. She concludes that categorical arguments from property, choice, truth, and speech lack weight, and mask fundamentally political choices about the allocation of power over information, cost, and opportunity. Each debate, although couched in a rhetoric of individual liberty, effectively reduces individuals to objects of choices and trades made by others. Professor Cohen argues, instead, that the debate about data privacy protection should be grounded in an appreciation of the conditions necessary for individuals to develop and exercise autonomy in fact, and that meaningful autonomy requires a degree of freedom from monitoring, scrutiny, and categorization by others. The article concludes by calling for the design of both legal and technological tools for strong data privacy protection.

The Human Nature of Corporate Boards: Law, Norms and the Unintended Consequences of Independence and Accountability

Abstract: Recent empirical work has puzzled over the lack of a positive correlation between the presence of a majority of outside directors on a corporate board and measures of firm performance. Drawing on work in social psychology and group behavior, this paper extends previous work to offer plausible explanations for the value-enhancing contributions of a "balanced" board. These possibilities include insider countering of outsider biases, the promotion of internal middle management interests, and the reduction in CEO influence activities that distort communications and interfere with trust. The paper then turns to use these same (and related) insights to point out some unintended behavioral consequences of recent efforts to increase the liability exposure of directors and make them more accountable. The paper concludes by addressing the connection between its analysis and the current "law versus norms" debate in corporate and securities law.

Patent Scope and Innovation in the Software Industry

Abstract: Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly 40,000 software patents already issued, and the Federal Circuit endorsing patentability without qualification, those questions are for the history books. The more pressing questions now concern the scope to be accorded software patents. In this paper, we examine the implications of some traditional patent law doctrines for innovation in the software industry. We argue that patent law needs some refinement if it is to promote rather than impede the growth of this new market, which is characterized by rapid sequential innovation, reuse and re-combination of components, and strong network effects that privilege interoperable components and products. In particular, we argue for two sorts of new rules in software patent cases.First, we advocate a limited right to reverse engineer patented computer programs in order to gain access to and study those programs and to duplicate their unprotected elements. Such a right is firmly established in copyright law, and seems unexceptional as a policy matter even in patent law. But because patent law contains no fair use or reverse engineering exemption, patentees could use the grant of rights on a single component of a complex program to prevent any "making" or "using" of the program as a whole, including those temporary uses needed in reverse engineering. While patent law does contain doctrines of "experimental use" and "exhaustion," it is not at all clear that those doctrines will protect legitimate reverse engineering efforts. We suggest that if these doctrines cannot be read broadly enough to establish such a right, Congress should create a limited right to reverse engineer software containing patented components for research purposes.Second, we argue that in light of the special nature of innovation within the software industry, courts should apply the doctrine of equivalents narrowly in infringement cases. The doctrine of equivalents allows a finding of infringement even when the accused product does not literally satisfy each element of the patent, if there is substantial equivalence as to each element. The test of equivalence is the known interchangeability of claimed and accused elements at the time of (alleged) infringement. A number of factors unique to software and the software industry - a culture of reuse and incremental improvement, a lack of reliance on systems of formal documentation used in other technical fields, the short effective life of software innovations, and the inherent plasticity of code - severely complicate post hoc assessments of the "known interchangeability" of software elements. A standard for equivalence of code elements that ignores these factors risks stifling legitimate, successful efforts to design around existing software patents. To avoid this danger, courts should construe software claims narrowly, and should refuse a finding of equivalence if the accused element is "interchangeable" with prior art that should have narrowed the original patent, or if the accused improvement is too many generations removed from the original invention.

Rawls' Linguistic Analogy: A Study of the 'Generative Grammar' Model of Moral Theory Described by John Rawls in 'A Theory of Justice.' (Phd Dissertation, Cornell University, 2000)

Abstract: The aim of the dissertation is to formulate a research program in moral cognition modeled on aspects of Universal Grammar and organized around three classic problems in moral epistemology: (1) What constitutes moral knowledge? (2) How is moral knowledge acquired? (3) How is moral knowledge put to use? Drawing on the work of Rawls and Chomsky, a framework for investigating (1)-(3) is proposed. The framework is defended against a range of philosophical objections and contrasted with the approach of developmental psychologists like Piaget and Kohlberg.One chapter consists of an interpretation of the analogy Rawls draws in A Theory of Justice between moral theory and generative linguistics. A second chapter clarifies the empirical significance of Rawls' linguistic analogy by formulating a solution to the problem of descriptive adequacy with respect to a class of commonsense moral intuitions, including those discussed in the trolley problem literature originating in the work of Foot and Thomson. Three remaining chapters defend Rawls' linguistic analogy against its critics. In response to Hare's objection that Rawls' conception of moral theory is too empirical and insufficiently normative, it is argued that Hare fails to acknowledge both the centrality of the problem of empirical adequacy in the history of moral philosophy and the complexity of Rawls' approach to the problem of normative adequacy. In response to Nagel's claim that the analogy between moral theory and linguistics is false because whatever native speakers agree on is English, but whatever ordinary individuals agree in condemning is not necessarily wrong, it is argued that the criticism ignores both Rawls' use of the competence-performance distinction and the theory-dependence of the corresponding distinction in linguistics. In response to Dworkin's claim that Rawls' conception of moral theory is incompatible with naturalism and presupposes constructivism, it is argued that Dworkin's distinction between naturalism and constructivism represents a false antithesis; neither is an accurate interpretation of the model of moral theory Rawls describes in 'A Theory of Justice.' The thesis concludes by situating Rawls' linguistic analogy within the context of broader debates in moral philosophy, metaethics, natural law theory, the theory of moral development, and the cognitive and brain sciences.

The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory

Abstract: Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human – and thus the female – which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire – badly – against women's true interests. In the concluding section I will suggest an alternative normative model for feminist legal criticism which aims neither for choice nor equality, but directly for women's happiness, and a feminist legal theory which has as its critical focus the felt experience of women's subjective, hedonic lives. My substantive claim is that women's happiness or pleasure – as opposed to women's freedom or equality – should be the ideal toward which feminist legal criticism and reform should be pressed, and that women's misery, suffering and pain – as opposed to women's oppression or subordination – is the evil we should resist. I will argue that feminist legal theorists, in short, have paid too much attention to the ideals of equality and autonomy and not enough attention to the hedonistic ideals of happiness and pleasure, and that correlatively we have paid too much attention to the evils of subordination and oppression, and not enough attention to the hedonistic evils of suffering and pain. My methodological assumption is that the key to moral decision-making lies in our capacity to empathize with the pain of others, and thereby resist the source of it, and not in our capacity for abstraction, generalization, or reason. My strategic claim is directly entailed: the major obstacle to achieving the empathic understanding which is the key to significant moral commitment, including the commitment of the legal system to address the causes of women's suffering, is the striking difference between women's and men's internal lives, and more specifically, the different quality of our joys and sorrows. This obstacle can only be overcome through rich description of our internal hedonic lives.

Public Health Law in a New Century: Part I: Law as a Tool to Advance the Community's Health

Abstract: Statutes, regulations, and litigation are pivotal tools for creating conditions for people to lead healthier and safer lives. Law can educate, create incentives, and deter; mandate safer product design and use of property; and alter the informational, physical, or economic environment.This article defines public health law as the power and duty of the state to ensure conditions for people to be healthy and limitations on the state's power to constrain autonomy, privacy, liberty, and proprietary interests of individuals and businesses. The 5 essential characteristics of public health law discussed are (1) the government's responsibility to defend against health risks and promote the public's health; (2) the population-based perspective of public health, emphasizing prevention; (3) the relationship between government and the populace; (4) the mission, core functions, and services of the public health system; and (5) the power to coerce individuals, professionals, and businesses for the community's protection.

Norms and Institutions in Global Competition Policy

Abstract: Over the last several years, a chorus of voices have called for international action in the area of competition policy. A good deal of dissonance, however, can be discerned among these voices. Most who have joined in share at least a stated commitment to promoting competition principles, as embodied in the antitrust laws of many countries. Yet their policy prescriptions differ dramatically, as evidenced by the divergent views of the United States and Europe. The European Commission proposes that the member states of the World Trade Organization (WTO) negotiate a binding competition code. The United States has rejected this idea and counterproposes increased bilateral cooperation between national competition authorities and continued study of the issue. Of course, national differences may arise as much from negotiating tactics as from disagreement on the analytics of which kind of arrangements are most likely to advance competition principles; but for those interested in law and policy, these analytics should be central to choosing among varying proposals. Since competition policy was one of the many issues left unresolved by the failed Seattle ministerial meeting of the WTO in late 1999, and will surely be revisited, how and why certain institutional configurations advance or retard agreed policy aims are questions ripe for attention. The answers will help define the possibilities for competition policy in an era of globalizing markets and contribute to a broader debate over the limits of trade policy in reconciling national economic policies.

Comments on Shrimp/Turtle and the product/process distinction

Abstract: This article provides comments on a paper by Professors Robert L. Howse and Donald H. Regan entitled 'The Product/Process Distinction — An Illusory Basis for Disciplining "Unilateralism" in Trade Policy.' The author suggests that, despite Howse and Regan's comment, there is a textual basis for the product/process distinction in the GATT/WTO, citing the word 'product', which occurs in various provisions of the WTO agreements, and cases interpreting such text; but, of course, this basis is subject to interpretation. He submits that an analogy between domestic and international cases does not work well, because the WTO institutional framework differs from that of a national court system. The question, according to this author, is how to prevent abuses if one abandons the product/process distinction or otherwise opens the possibility of trade-restricting measures tied to process of production. He concludes that the product/process distinction remains useful because it is a bright-line rule, but he agrees that such distinction should not be too rigid. The real question, still to be addressed, is how far to relax the distinction and in what areas. In their article on the product/process distinction in international trade, Robert Howse and Donald Regan provide very many interesting ideas, with many facets to consider and reflect upon. However, I have a number of difficulties with some of their detailed propositions and (to some extent) the broad thrust of the article. These brief comments will seek to outline those difficulties in a somewhat abbreviated form. The proposition that there is no 'justifiable text' to support the essence of the product/process distinction is questionable. There is 'justifiable text'. It is debatable whether the interpretation of that text, manifested in several cases, including the recent Shrimp/Turtle case, is correct, but the very word 'product' (occurring in many parts of the WTO agreements, including Article III of the GATT) is text upon which an

A Proposed National Policy on Health Care Workers Living With HIV/AIDS and Other Blood-Borne Pathogens

Abstract: In 1991, scientific uncertainty about the risk of transmission of human immunodeficiency virus or hepatitis B virus (hepatitis B e antigen [HBeAg]–positive) led the Centers for Disease Control and Prevention to recommend that infected health care workers (HCWs) be reviewed by an expert panel and inform patients of their serologic status before engaging in exposure-prone procedures. The data demonstrate that risks of transmission in the health care setting are exceedingly low, suggesting that the national policy should be reformed. Implementation of the current national policy at the local level poses significant human rights burdens on HCWs, but does not improve patient safety. A new national policy should focus on the management of the workplace environment and injury prevention by creating a program to prevent blood-borne pathogen transmission; by encouraging infected HCWs to promote their own health and well-being; by discontinuing expert review panels and special restrictions for exposure-prone procedures, which stigmatize HCWs; by discontinuing mandatory disclosure of a HCW's infection status in low-level risk procedures; and by imposing practice restrictions to avert significant risks to patients. Inclusion of these principles would achieve high levels of patient safety without discrimination and invasion of privacy.

Public health law in a new century: part II: public health powers and limits.

Abstract: The Constitution allocates public health powers among the federal government and the states. Federal public health powers include the authority to tax, spend, and regulate interstate commerce. These powers enable the federal government to raise revenues, allocate resources, economically penalize risk behavior, and broadly regulate in the public's interest. States have an inherent authority to protect, preserve, and promote the health, safety, morals, and general welfare of the people, termed police powers. Police powers enable states to preserve the public health in areas ranging from injury and disease prevention to sanitation, waste disposal, and environmental protection. The Rehnquist Court has emphasized the limits of federal powers and the primacy of states in public health issues affecting local concerns. Finally, the Constitution safeguards individual interests in autonomy, privacy, liberty, and property. The Supreme Court often defers to public health authorities in matters of public health, but engages in strict scrutiny if government interferes with fundamental freedoms or discriminates against a suspect class. Provided that they act justly and reasonably to avert a serious health threat, the Court should cede to agencies the power to act for the communal good. JAMA. 2000.

Public health law in a new century: part III: public health regulation: A systematic evaluation.

Abstract: Public health interventions need justification because they intrude on individual rights and incur economic costs. Coercive interventions can be justified in only 3 cases: to avert a risk of serious harm to other persons, to protect the welfare of incompetent persons, and, most controversially, to prevent a risk to the person himself/herself.This article proposes a systematic evaluation of public health regulation. The article recommends that public health authorities should bear the burden of justification and, therefore, should demonstrate (1) a significant risk based on scientific evidence; (2) the intervention's effectiveness by showing a reasonable fit between means and ends; (3) that economic costs are reasonable; (4) that human rights burdens are reasonable; and (5) that benefits, costs, and burdens are fairly distributed.The 3 articles in this series have sought to provide a fuller understanding of the varied ways in which law can advance the public's health. Public health law should be seen broadly as the government's power and responsibility to ensure the conditions for the population's health. As such, public health law has transcending importance in how we think about government, politics, and policy.

Restoring What's Environmental About Environmental Law in the Supreme Court

Abstract: In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades The article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices The article's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law The Justices have instead tended to view environmental protection as merely an incidental factual context for the presentation of legal issues that share no unique environmental dimension Professor Lazarus posits that this view of environmental law is misguided and that it has resulted in poorer Court decisions Missing from the Court's analysis has been sufficient emphasis on the nature and normative weightiness of environmental protection concerns and their import both for judicial construction of relevant legal rules and the Court's understanding of the workings of relevant lawmaking institutions Finally, the article describes how the 'environmental' dimension to environmental law might be restored to the nation's highest Court This discussion includes a description of how the ecological character of the problem addressed by environmental law affects legal doctrine and lawmaking institutions and how current and future Justices might be made better aware of that relationship

Truth and Consequences: The Perils of Half-Truths and Unsubstantiated Health Claims for Dietary Supplements

Abstract: The author examines the recent decision of the U.S. Court of Appeals in Pearson v. Shalala, which struck down on First Amendment grounds the Food and Drug Administration’s (FDA’s) regulatory scheme for approving health claims for dietary supplements. In its recent ruling, the Pearson court rejected the FDA’s view that health claims that cannot be proved as either true or false pose a serious risk to consumers. Although the court recognized that some health claims will mislead consumers, it reasoned that the FDA’s regulations are nonetheless impermissibly restrictive because they do not allow manufacturers to make health claims accompanied by clarifying disclosures when significant scientific agreement is lacking. The court suggested that disclaimers referring to the absence of FDA approval, or the inconclusive nature of the scientific evidence, might be sufficient to guard against consumer deception. The author explains why the reasoning of Pearson misconceives basic First Amendment commercial sp...

Integrating Environmental Justice into EPA Permitting Authority

Abstract: A recurrent issue arising out of the President?s Executive Order 12898 on Environmental Justice is the extent to which EPA possesses the authority to condition on environmental justice grounds permits that the Agency (and States with federally-approved programs) issues to regulated entities pursuant to the various federal environmental protection laws administered by EPA. A related question is the extent to which the permitting authority (state or federal) may deny a permit altogether solely on environmental justice grounds. This article questions the apparent assumption of many that no such permit conditioning or denial authority exists relating to environmental justice concerns. The article is concerned exclusively with the issue whether EPA possesses authority that it has not yet chosen to exercise. The article does not comprehensively address the distinct question whether EPA is required under existing statutory provisions to impose such conditions or deny such permits. The article concludes that EPA clearly has considerable authority to promote environmental justice through permit conditions and denials (and registration conditions and denials) that the Agency has yet to enlist effectively. More particularly, the article explores EPA's authority to restrict and deny the operation of environmentally risky facilities based on the factor that the community to be exposed is already disparately subject to such risks from other sources as well as the Agency?s authority to condition permits in a manner that requires the regulated entity itself to help the exposed community to build the community enforcement capacity necessary for the community to oversee and ensure the facility's compliance with applicable environmental laws.

May government ever use torture? Two responses from German law

Abstract: May government ever use torture? When we consult our sense of right and wrong, our answer would and should be, "certainly not!" It would be unfortunate and a sad indication of our moral state of mind were we to respond otherwise. Would our minds change, though, if we were to envision government using torture not as a means to repress citizens, but for the legitimate purpose of protecting them against harmful individuals? Even then, most of us would probably still conclude that torture remains an illegitimate act. Even good ends do not justify all means. Despite these initial reactions, doubts begin to arise when we turn from the general description of bad persons threatening good citizens with evil acts to more detailed and probable scenarios. All of you remember the terrorist attack, a few years ago, on the World Trade Center in New York City. Some of you will have seen the movie, The Siege, in which a U.S. Army General uses force to get the names of members of a suspected terrorist group from an Arab-American.1 And, as some of you are aware, in 1996 the Israeli Supreme Court held that it was legal to extract information from detainees to prevent probable or imminent terrorist attacks.2 Instead of using

Preemption and Federalism in Corporate Governance: Protecting Shareholder Rights to Vote, Sell, and Sue

Abstract: The long running debate over the relative roles of federal and state law in regulating corporations, which in recent years has tilted toward state regulation even while the debate has remained relatively quiet, may have taken a new turn. This article suggests that in one segment of corporate law, the role of shareholders, a distinct federal trend is visible. The article discusses: 1) federal preemption in the Uniform Standards Act of 1998, 2) federal law which has expanded the place of shareholder voting, and 3) state disclosure law deferring to federal disclosure rules. The discussion occurs within the author's suggested structure for approaching corporate law based on the three types of rights for shareholders: they vote, sell or sue, all in limited doses. The article concludes with an examination of whether there is a hierarchy among these three functions as to what law can do as compared to markets or private ordering, and what federal and state lawmakers have chosen to have law do.

The First Principles Approach to Antitrust, Kodak, and Antitrust at the Millenium

Abstract: This short paper prepared for the Antitrust Law Journal's Symposium on Antitrust at the Millennium examines the contribution to antitrust reasoning and law of the Supreme Court's Kodak opinion. The main focus of the article involves the first principles approach to antitrust analysis. In this approach, analysis is centered on the evaluation of the competitive effects of the conduct. Market power and market definition have a role, but their role is part of and in reference to the main analysis of the alleged anticompetitive conduct and its likely market effects. Market power and market definition are not analyzed in a vacuum or in a threshold test, divorced from the conduct and effects allegations. Instead, analysis focuses on competitive effects, in some sense, the effects on the conduct on changes in market power. The competitive benchmark for analyzing both market effects and market power is the price that would prevail in the absence of the alleged anticompetitive conduct. This benchmark price often differs from both the current price and the perfectly competitive price. By following this first principles approach, logic and consistency are maintained and analytic traps and factual errors can be avoided. These traps include the well-known Cellophane Trap, but also the Marginal Cost, Price-Up, Threshold Test and Unilateral SSNIP Traps that are defined and discussed in the article. In addition, useless quibbling about the proper relevant market also sometimes may be avoided and replaced with evidence of market effects.

Community Lawyering: Revisiting the Old Neighborhood

Abstract: Lawyering for poor and subordinated clients has been the subject of significant re-examination over the past decade. Many commentators have provided a critique of traditional lawyering models and some of them have developed new patterns of "community lawyering." Too often, however, these new models incorporate many of the shortcomings of the traditional model. In particular, they often see the law as a significant part of the answer to the problems of poverty and subordination. While they speak in terms of client empowerment, they focus primarily on the relationship between a lawyer and a client (who is typically an individual). Even when they focus on the products of the lawyer-client relationship, the product tends to be the creation or enforcement of legal rights. This paper argues that a relational or rights based analysis of the lawyer's role is insufficient to address the real problems of poverty. It begins by reiterating a position that is widely held among progressive lawyers; that the struggle against subordination requires community organizing and collective action. It goes on to discuss the definition and nature of community and the role of a lawyer who seeks to represent "community" interests. Communities are not monolithic and incorporate many different, often competing, views. How should a lawyer distinguish between these views and choose clients so as to maintain a coherence in his or her practice? How should a lawyer relate to a group once a client is chosen? And most importantly, what role should a lawyer play in assisting a client to plan and implement strategies? The paper argues that these strategies often need to be political, not merely legal, and that community lawyers or, as the author has dubbed them, activist lawyers, must participate in building an integrated strategic plan and in its implementation.

Middle-Class Black Suburbs and the State of Integration: A Post-Integrationist Vision for Metropolitan America

Abstract: This article reflects broadly on the state of residential integration, and hence race relations, in the United States. It surveys social science research on racial segregation, integration, and the emerging phenomenon of all-black, middle-class suburban enclaves and offers some surprising insights. Despite the illusion of integration, even affluent blacks are largely segregated in the United States. In those metropolitan regions where the majority of African-Americans live, the majority of middle-class blacks live in predominately black communities. And African-Americans, including affluent ones, are significantly more segregated than other racial and economic groups. While racial segregation has declined modestly since the 1960s, the pace of integration of black people has been glacial. The article concludes that full integration of African-Americans is unlikely to be achieved because, at least for blacks and whites, an "integrated neighborhood" is one in which their own group is in the majority. The article also examines the normative debate about the merits, vel non, of voluntary black separation and about the modern relevance of residential integration in American society. While middle-class black suburbs are premised upon a confident separatism, residents of these communities are enduring significant costs for their separatist choice. Specifically, middle-class black communities tend to be characterized by more poverty, higher crime, worse schools, and fewer resources than predominately white middle-class communities. They also tend to be 180 degrees from the areas of highest economic growth. Thus, that article concludes that affluent and middle-class blacks, like poor blacks, are better off in integrated settings in terms of government services, local taxes and access to educational and economic opportunities. Finally, the article offers an alternative, post-integrationist vision for the American metropolis. Accepting that full residential integration is unlikely, the article argues for a two-pronged strategy that is premised upon attacking the root causes of inequality, rather than achieving integration. First, it argues that law makers and law enforcers must be vigilant in attacking any form of discrimination that limits choice in housing, particularly for African-Americans. Second, it argues for a system of local governance that allows citizens to form localities based upon desired identities and preferences but that also offers strong regional entities that can mitigate the inequities that flow from the seemingly inevitable atomization of the metropolitan polity. A few metropolitan regions, most notably the Twin Cities, Minnesota, region, have pursued such a course, enacting regional tax base sharing and fair-share affordable housing, for example. But such a regionalist vision requires a majority of citizens of the metropolis to form broad coalitions that transcend local boundaries of race and class. While such coalitions currently are rare in the United States, the few examples that exist show that they are not impossible.

Bioengineered Food--Safety and Labeling

Abstract: The safety and labeling of genetically engineered foods are two areas that have elicited considerable public concern and debate This Policy Forum provides a legal analysis of these issues in the context of two bills that have been recently proposed in The US Congress, the Genetically Engineered Food Safety Act and the Genetically Engineered Food Right to Know Act Most transgenic components of foods currently on the market are plant-incorporated protectants or their inert ingredients Therefore, they have been evaluated for safety by the Environmental Protection Agency (as well as the Food and Drug Administration), and their disclosure in labeling should not be required If plant-incorporated protectants are considered safer than chemical pesticides, and chemical pesticides do not have to be disclosed in labels, then bioengineered foods should not be subject to stricter regulation, nor should they be required to be labeled The two bills are inconsistent, in many respects, with well-established principles of food regulation

Public Subsidies and the Role of Suburbanization in Urban Economic Development: A Reply to Timothy Bates

Abstract: This article commends Professor Bates’s analysis of the Minority Enterprise Small Business Investment Company (MESBIC) program, acknowledging its important object lessons: that size, excellent management talent, and effective cost and risk containment are critical to MESBIC success. I challenge, however, Professor Bates’s implicit indictment of the Clinton administration’s signature community development initiatives. The article argues that such community development investments are justified and should be understood as a small but important component of an overall strategy to connect economically marginal communities and the citizens who live there to the regional economy. More important, this article argues that the next wave of community development strategies sponsored by federal and state government ought to squarely address issues of regional inequity, avoiding subsidization of rapid suburbanization in a manner that exacerbates interjurisdictional disparities of tax-base wealth and of citizen opport...

Viewing Health Care as a Common Good: Looking Beyond Political Liberalism

Abstract: In the new, incremental politics of health care, managed care (for the insured) is demonized and patients' rights are protected, while concern about the uninsured remains marginal. Quality of care is now the issue: consumers want "choice" restored in the medical marketplace, and physicians decry their perceived loss of professional autonomy. The managed care revolution, inspired by the private sector to contain costs, has stalled - the upward trend in medical spending is reasserting itself - yet America's liberal political system seems incapable of comprehensive health care reform. Why? At root, it is the limits of liberalism itself. To the extent that liberalism is wanting when deliberating about health policy, other ways of thinking about health care must be found. This article traces the shape of one such alternative - the political common good - and argues that the Oregon Health Plan - an innovative and controversial effort to provide Medicaid coverage to a greater number of Oregon residents - while imperfect, highlights the potential political common good thinking has in overcoming many of liberalism's limits. The article begins by discussing the limits of liberalism within the health care context. Part I introduces the question against the backdrop of President Clinton's failed health care plan and offers the political common good as a fresh way of thinking about health care. Part II explores two distinctive features of anti-perfectionist liberalism - loyalty to the individual and emphasis on neutrality. In doing so, it explains why a liberal paradigm is incapable of providing a coherent theoretical framework for promoting health care reform. Part III explores three different conceptions of the common good. First, it examines the common good as presented in recent Catholic social teaching. Next, it summarizes John Rawls' conception of political liberalism, with particular emphasis on public reason and the common good. Finally, it defines a third conception - the political common good - and argues in favor of adopting this as a more robust theoretical foundation for political discourse on health care reform. Part IV uses the Oregon Health Plan, enacted in 1989 and implemented in 1994, to point out the potential of understanding health care as a political common good. The article concludes by speculating about what a rescue of common good-talk would add to deliberations over health care policy.

The 'Normal' Successes and Failures of Feminism and the Criminal Law

Abstract: To write of feminist reform in the criminal law is to write of simultaneous success and failure. We have seen marked changes in the doctrines and the practice of rape law, domestic violence law, and the law of self-defense. There is not a criminal law casebook in America today, nor a state statute book, that does not tell this story. Yet for all of this success, we also live in a world in which reform seems to suffer routine failures. Many believe, for example, that feminist reforms have rid rape law of the resistance requirement; however, recent scholarship makes it clear that the resistance requirement has not disappeared. Similarly, many believe that feminism has rid us of the marital rape exemption; in fact, there is evidence that marital rape immunities remain on the statute books. Finally, many believe that reform has brought widespread judicial acceptance of battered women's self-defense claims; but the battle over this defense in the law reviews and popular media testifies to the continuing lack of settlement of the underlying issues.

Misguided Morality: The Repercussions of the International Whaling Commission?s Shift from a Policy of Regulation to One of Preservation

Abstract: In 1982, the International Whaling Commission (IWC) instituted a complete moratorium on commercial whaling in an effort to stop the continued depletion of the world?s whale stocks. This ban continues today. While it was probably a necessary action at the time, the continuance of a total moratorium can no longer be justified in light of scientific evidence showing that some whale stocks exist in numbers sufficient to withstand hunting on a sustainable basis. Because science can no longer support the ban, many anti-whaling activists now use morality-based arguments to defend it. Such arguments, while admirable, do not present a sufficient justification for preventing countries like Japan and Norway, which have relied on whaling for centuries, from hunting on a sustainable basis those whales that exist in plentiful numbers. Japan and Norway, increasingly frustrated with the IWC?s moratorium and preservationist outlook, have threatened to follow the lead of other pro-whaling nations such as Iceland and withdraw from the Commission. Such a withdrawal could spell disaster for the IWC because it would eliminate the organization?s ability to regulate two of the largest whaling nations in the world. And, without the IWC to regulate the whalers, the whales would again be in danger of severe over harvesting. In order to prevent the withdrawal of its pro-whaling nations and protect the whales, the IWC must compromise with Japan, Norway and others. One possible compromise would be to lift the moratorium to the extent that Japan, Norway and other whaling nations would be allowed to hunt minke whales commercially on a sustainable basis. Another possible compromise would be to grant Japan and Norway a quota of minke whales under the IWC?s aboriginal subsistence whaling exception which allows limited whaling by those with a long history of whaling for cultural and nutritional purposes. Regardless of the solution that is eventually chosen, the bottom line is clear: the IWC must compromise with the whalers, or the whales will surely pay the price.

Public Health Regulation: A Systematic Evaluation

Abstract: Public health interventions should be justified because they intrude on individual rights and incur economic costs. Coercive interventions can be justified only in three cases: to avert a risk of serious harm to other persons, to protect the welfare of incompetent persons, and, most controversially, to prevent a risk to the person herself. This chapter proposes a systematic evaluation of public health regulation. The article recommends that public health authorities should bear the burden of justification and, therefore, should demonstrate: (1) significant risk based on scientific evidence; (2) the intervention's effectiveness by showing a close fit between means and ends; (3) economic costs are reasonable; (4) human rights burdens are reasonable; and (5) benefits, costs, and burdens are fairly distributed. This series of articles has sought to provide a fuller understanding of the varied ways in which law can advance the public's health. Public health law should be seen broadly as the government's power and responsibility to assure the conditions for the population's health. As such public health law has transcending importance in how we think about government, politics, and policy.

Viewing health care as a common good: looking beyond political liberalism.

Abstract: INTRODUCTION 278 I. CLINTON’S HEALTH CARE PLAN AND THE LIMITS OF LIBERALISM 280 II. HEALTH CARE REFORM AND THE LIMITS OF LIBERALISM 290 A. LIBERAL INDIVIDUALISM 290 B. LIBERAL NEUTRALITY 297 C. HEALTH CARE POLICY IN A LIBERAL POLITY 302 III. HEALTH CARE REFORM AND THE COMMON GOOD.........305 A. A CATHOLIC NOTION OF THE COMMON GOOD 306 B. RAWLS’ POLITICAL LIBERALISM AND THE COMMON GOOD ....317 C. HEALTH CARE POLICY AND THE POLITICAL COMMON GOOD 324 IV. HEALTH CARE AS A POLITICAL COMMON GOOD: THE OREGON PLAN 326 A. THE OREGON HEALTH PLAN 327 1. Background 327 2. The Legislation 335 3. The Process and the 1991 Prioritized List 337 a. The Methodology 338

Method in Catholic bioethics.

Abstract: Method in Catholic bioethics is distinguished by a specific philosophical and theological anthropology. Human beings are not to be considered simply as selves, but as selves in relation to God and each other. This essay reflects on that claim by reviewing four areas of concern from Catholic social teaching: common good, human dignity, option for the poor, and stewardship.

Shareholders as Grown-Ups: Voting, Selling, and Limits on the Board's Power to 'Just Say No'

Abstract: With the return of a hot takeover market amidst a shareholder population in which institutional shareholders have a dominant role there has been renewed discussion of the role of shareholders in corporate decision-making and for takeovers in particular. This article takes the author's suggested structure as to what shareholders do (they vote, sell or sue, all in limited doses) and examines the contrasting lines of Delaware law as to permissible limits on director action to limit shareholder selling (see Unocal & Unitrin) and permissible limits on director actions to limit shareholder voting (see Blasius). The article examines reasons that might explain a difference in the two contexts and argues for a unified approach that would preserve space for shareholder decision-making.