Showing papers by "Georgetown University Law Center published in 2002"

The Economic Structure of Renegotiation and Dispute Resolution in the WTO/GATT System

Abstract: The treaty creating the WTO replaced the GATT dispute resolution system, which contained no formal sanctions for breach of agreement as a practical matter, with a system that results in centrally authorized sanctions against recalcitrant violators of WTO trade agreements. We examine the important features of the new system, and argue that the institutionalization of a sanctioning mechanism was not motivated by a perceived need to increase the penalty. In particular, the GATT system relied on unilateral retaliation and reputation to police the bargain, and toward its end unilateral retaliation became excessive, interfering with opportunities for efficient breach. The WTO mechanism for arbitrating the magnitude of proposed sanctions is the major innovation under WTO law, and ensures that sanctions are not set too high.

School Vaccination Requirements: Historical, Social, and Legal Perspectives

Abstract: Though school vaccination has been an important component of public health practice for decades, it has had a controversial history in the United States and abroad. Subject to exceptions, including individual medical, religious, and philosophical objections, modern state school vaccination laws mandate that children be vaccinated prior to being allowed to attend public or private schools. State school vaccination requirements are widely thought to serve important public health purposes. However, they also provoke popular resistance. Historical and modern examples of the real, perceived, and potential harms of vaccination, governmental abuses underlying its widespread practice, and strongly-held religious beliefs have led to fervent objections among parents and other "antivaccinationists" on legal, ethical, social, and epidemiological grounds. Historic and modern legal, political, philosophical, and social struggles surrounding vaccination are vividly reflected in legislative and judicial debates on the powers, and limits, of government to compel school vaccination policies. At the crux of public debate are core concerns about the tradeoffs between public health benefits and the infringements on individual and parental freedoms arising from the systematic vaccination of millions of school age children in the United States. Public health authorities argue that school vaccination requirements have led to a drastic decrease in the incidence of once common childhood diseases. Antivaccinationists tend to view the consequences of mass vaccination on an individualistic basis, focusing on alleged or actual harms to children from vaccinations for which government vaccination requirements are at fault. In this article, we discuss this debate through an examination of the historical and contemporary aspects of immunization requirements as a condition of school attendance. Part II provides a brief history of vaccination as a medical and public health practice, using smallpox disease as the primary case study, and subsequently addresses corresponding societal and individual objections to the proliferation of vaccination programs. Part III reviews the subsequent legislative and judicial reactions to these policies. Did state and local lawmakers second guess the need for school vaccination laws, and, if so, for what reasons? How did courts construe these laws? Our judicial examination includes a review of the various legal and constitutional objections to school vaccination policies, including those based on religious beliefs under the First Amendment, equal protection theories, and due process concerns. The historical and modern legal and social contexts supports a contemporary discussion of views about school vaccination requirements in Part IV. We examine the modern debate through a scholarly discussion of available evidence of the public health effectiveness of school vaccination programs. We compare (1) childhood immunization rates and (2) rates of vaccine-preventable childhood diseases before and after the introduction of school vaccination requirements. These data suggest that school vaccination requirements have succeeded in increasing vaccination rates and reducing the incidence of childhood disease. Finally, we discuss modern antivaccination arguments. Like arguments from the past, modern antivaccination sentiment is fueled by general distrust of government, a rugged sense of individualism, and concerns about the efficacy and safety of vaccines.

Untreated addiction imposes an ethical bar to recruiting addicts for non-therapeutic studies of addictive drugs.

Abstract: The mental illness of substance dependence or addiction is responsible for major economic, social, and personal costs. If we are to elucidate its etiology, understand its mechanisms, and eventually bring it under control, scientific investigation is essential. Research in animals and humans has enhanced our understanding of this disease through examination of genetic, neurophysiological, biochemical, and behavioral factors. But because animals cannot verbalize their subjective responses to drugs and because significant symptoms of addiction (e.g., craving, impaired control, and compulsive use) cannot be observed in non-drug-dependent humans, it is not surprising that certain investigations of substance dependence have required the participation of addicted or substance-dependent humans.

In Aid of Removal: Due Process Limits on Immigration Detention

Abstract: The use of immigration law to detain foreign nationals has come under increased scrutiny in recent years, as the federal government has increasingly resorted to immigration law as an authority for preventive detention in settings where criminal law would not permit it. Most prominently, the Attorney General used immigration law to justify detaining the majority of those arrested in the mass preventive detention campaign he conducted and is conducting in the wake of the terrorist attacks of September 11. Congress has mandated detention of certain foreign nationals deportable for having committed criminal offenses, a practice currently under review by the Supreme Court. And the INS has used detention of Haitian asylum seekers for symbolic purposes. In this article, I argue that apart from the detention of enemy aliens during wartime, due process prohibits preventive detention in any setting - immigration or otherwise - absent an individualized showing that the person is either dangerous or a flight risk, and a legitimate government purpose other than detention itself. These due process limits apply across the board, to bail decisions in the criminal context, to civil commitment, and to immigration detention. Yet because immigration law in recent years has lost sight of these basic principles, taking due process seriously would have radical consequences for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it has to other forms of civil detention; in other words, this is not a subject on which immigration exceptionalism, or the plenary power doctrine, has played much of a role. Second, I apply these general principles to several immigration law developments since 1996, illustrating that significant aspects of the INS's current detention policy and practice violate due process. Finally, I take up the issue of detention of entering aliens, and argue that cases holding that due process does not limit entering aliens' detention are predicated on an erroneous conflation of the decision to exclude and the decision to detain.

The Politics of Legislative Drafting: A Congressional Case Study

Abstract: In judicial opinions construing statutes, it is common for judges to make a set of assumptions about the legislative process that generated the statute under review. For example, judges regularly impute to legislators highly detailed knowledge about both judicial rules of interpretation and the substantive area of law of which the statute is a part. Little empirical research has been done to test this picture of the legislative process. In this Article, Professors Nourse and Schacter take a step toward filling this gap with a case study of legislative drafting in the Senate Judiciary Committee. Their results stand in sharp contrast to the traditional judicial story of the drafting process. The interviews conducted by the authors suggest that the drafting process is highly variable and contextual; that staffers, lobbyists, and professional drafters write laws rather than elected representatives; and that although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process. The case study suggests not only that the judicial story of the legislative process is inaccurate but also that there might be important differences between what the legislature and judiciary value in the drafting process: While courts tend to prize what the authors call the "interpretive" virtues of textual clarity and interpretive awareness, legislators are oriented more toward "constitutive" virtues of action and agreement. Professors Nourse and Schacter argue that the results they report, if reflective of the drafting process generally, raise important challenges for originalist and textualist theories of statutory interpretation, as well as Justice Scalia's critique of legislative history. Even if the assumptions about legislative drafting made in the traditional judicial story are merely fictions, they nonetheless play a role in allocating normative responsibility for creating statutory law. The authors conclude that their case study raises the need for future empirical research to develop a better understanding of the legislative process.

Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect

Abstract: Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from six trolley problem studies of over five hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.

Personal Privacy and Common Goods: A Framework for Balancing under the National Health Information Privacy Rule

Abstract: The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to "covered entities" (health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or "protected health information" (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities' privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosure. Through the regulations, HHS attempts to set a "floor" for protections that, it suggests, "balance[s] the needs of the individual with the needs of society." Reaching this balance, however, is precarious. The national privacy rule does not always achieve a fair and reasonable allocation of benefits and burdens for patients and the community. We suggest a framework for balancing that values privacy and common goods, without a priori favoring either. We instead seek to maximize privacy interests where they matter most to the individual and maximize communal interests where they are likely to achieve the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to individuals is low, we suggest that public entities should have discretion to use data for important public purposes. Provided that the data are used only for the public good (e.g., research or public health), and the potential for harmful disclosures are negligible, there are good reasons for permitting data sharing. Conversely, if data are disclosed in ways that are unlikely to achieve a strong public benefit, and the personal risks are high, individual interests in autonomy should prevail. Consequently, for these kinds of disclosures, the law should strictly prohibit the release of information without the patient's consent. Through this framework we attempt to maximize individual and communal interests in the handling of identifiable health data.

Managing the 'Expectations Gap' in Investor Protection: The Sec and the Post-Enron Reform Agenda

Abstract: One of the underlying questions in the aftermath of the Enron and comparable scandals is whether securities regulation failed, and if so, what kind of fix is appropriate. To answer that, we have to confront an apparent "expectations gap" in what the law can accomplish. Some investors (and politicians) seek greater confidence than is practicable, and the SEC has the political incentive to contribute to a mythology of "market integrity" - and then manage the fallout when corruption surfaces. This paper explores the SEC's political situation, and then moves on to discuss various reforms - including some in the recently enacted Sarbanes-Oxley Act - designed to improve investor protection. While some reforms do indeed improve securities regulation at the margin, an expectation gap remains.

Bioterrorism Law and Policy: Critical Choices in Public Health:

Abstract: There is perhaps no duty more fundamental to American government than the protection of the public's health, safety, and welfare. On September 11, 2001, this governmental duty was severely tested through a series of terrorist acts. Developments concerning the intentional spread of anthrax through the US mails provide a modern example of bioterrorism activity in the United States. However, bioterrorism has long been a part of the nation's past. Numerous examples of attempted and actual bioterrorist activity have been documented in American and world history. Given the nation's current level of preparedness for bioterrorism, a large-scale bioterrorist attack would be unprecedented in its impact on morbidity and mortality in the US population. The limited, intentional spread of anthrax has shown that public health authorities are not fully prepared to handle a large-scale bioterrorism event. Responding to a bioterrorism event may require public health authorities to exercise broader powers than they traditionally employ.

Procedural Justice: Tempering the State's Response to Domestic Violence

Abstract: Over the past 30 years, the efforts of anti-domestic violence movement activists culminated in major legal reforms that have substantially expanded and improved the justice system's responsiveness to victims. Given the enormous barriers that once confronted battered women - and still confront them today - it is hardly surprising that most scholars, policy makers, and activists have been relatively unconcerned that most recent reforms have reduced the level of procedural justice accorded to batterers. But the wisdom of this approach - promoting responsiveness to battered women at the expense of providing fair treatment for perpetrators - must be questioned in light of an emerging body of social science research. Researchers evaluating why people obey the law have found that the manner in which an official directive is reached has an independent, and often more powerful, effect than does the outcome of the directive itself. The likelihood of a person's compliance with the dictates of police and probation officers, or with court orders issued in civil or criminal cases, is at least as firmly rooted in his perception of fair process as in his satisfaction with the ultimate result. The data indicate that the use of fair procedures - allowing a person to state his views, ensuring that his perspective is taken seriously, and demonstrating that officials maintain an open mind about him and his case - enhances a person's sense that authorities are moral and legitimate. This perception facilitates a person's sense of self-worth and, in turn, his degree of compliance, even when this conflicts with his immediate self-interest. Professor Epstein documents the recent legal reforms implemented on behalf of battered women in the criminal and civil justice systems, including warrantless arrest and mandatory arrest laws and no-drop prosecution polices as well as civil protection order statutes and statutory modifications recommended pursuant to the Model State Code on Domestic and Family Violence. She then describes the ways in which these reforms have improved the state's responsiveness to victims, yet simultaneously entailed serious costs by diminishing batterers' perceptions of procedural justice. Epstein then defines the building blocks of procedural justice and reviews the social science data demonstrating its importance for increasing batterers' compliance with legal directives, arguing that based on this research, those concerned with victim safety cannot ignore batterers' perceptions of fairness. She explores the implications of this idea, with suggestions for re-envisioning reforms that foster a sense of fair process for perpetrators. Police and prosecutors must provide defendants' with expanded opportunities to feel heard and respected, while simultaneously improving the advocacy services for victims. Defense attorneys must take advantage of their special position of trust to encourage batterers to comply with legal dictates. Judges must communicate greater respect for and understanding of defendants, particularly in pro se contexts. And in civil protection order cases, defendants must receive more and better information and must have access to a more individually tailored, responsive pretrial negotiation process. To date, reformers have sought to protect victims regardless of the impact on batterers; little attention has been paid to the potentially close connection between victim safety and abusers' sense of fair treatment. But because procedurally flawed policies are likely to undermine abuser compliance with official directives, a new focus is necessary for victims' long-term protection.

Corporate Speech and the Constitution: The Deregulation of Tobacco Advertising

Abstract: In a series of recent cases, the Supreme Court has given businesses powerful new First Amendment rights to advertise hazardous products. Most recently, in Lorillard Tobacco Co v Reilly (121 SCt 2404 [2001]), the court invalidated Massachusetts regulations intended to reduce underage smoking. The future prospects for commercial speech regulation appear dim, but the reasoning in commercial speech cases is supported by only a plurality of the court. A different First Amendment theory should recognize the importance of population health and the low value of corporate speech. In particular, a future court should consider the low informational value of tobacco advertising, the availability of alternative channels of communication, the unlawful practice of targeting minors, and the magnitude of the social harms.

The State of Asylum Representation: Ideas for Change

Abstract: The plight of refugees – those who flee persecution – touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum seekers on their own to present their claims when only experts understand how the process works and what the case law means? Asylum applicants often have escaped life threatening situations in their home countries and have overcome financial and physical obstacles to reach the United States, only to be faced with a daunting and confusing asylum application process. Legal assistance is permitted, but it must be at no expense to the government. While some asylum seekers find competent representation, many do not. Most of the key players in the U.S. asylum process – the representatives, the Immigration and Naturalization Service ("INS") trial attorneys, the Asylum Officers and the Immigration Judges – believe that representation makes a difference for those seeking relief and for the effectiveness of the system. Immigration Court data indicates that represented asylum cases are four to six times more likely to succeed than pro se ones. The time has come to develop ways for all asylum seekers to have the type of legal assistance needed to more fully ensure that bona fide refugees receive the protection that the U.S. public wants to give them and that our laws require. Despite the importance of legal representation, there has yet to be a systematic evaluation of the effectiveness of the current delivery mechanisms in place to aid those in need of legal services and the effect of representation on the asylum system in general. This paper examines the state of affairs with regard to asylum representation and attempts to understand better the barriers to representation. It also begins to assess the effects of representation on asylum seekers and the asylum system itself, and to analyze the various ways in which the representation system can be improved.

Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: The Philosophical Basis for the Legal Prohibition of Discrimination

Abstract: This article provides a comprehensive examination of the philosophical history and the moral foundations of American anti-discrimination law. Both the Equal Protection Clause and the Civil Rights Act are designed to embody a fundamental moral principle, the anti-discrimination principle. The article begins by identifying three different interpretations of this principle: the anti-differentiation interpretation that prohibits unequal treatment on the basis of irrelevant characteristics, the anti-oppression interpretation that prohibits the oppressive unequal treatment of minorities, and the anti-subordination interpretation that prohibits conduct that has the effect of subordinating or continuing the subordination of minorities. It then traces the history of the Equal Protection Clause and the Civil Rights Act, demonstrating 1) that the Equal Protection Clause was originally understood as an anti-oppression principle, that over the course of the twentieth century it evolved into an anti-differentiation principle, and that over the last three decades it was again transformed into a fluctuating mix of these two interpretations, and 2) that the Civil Rights Act was originally understood as an anti-differentiation principle but quickly shattered in a confused amalgam of anti-oppression, anti-differentiation, and anti-subordination principles. The article proceeds by performing a normative analysis of both provisions to demonstrate that the Equal Protection Clause is properly interpreted as an anti-differentiation principle and the Civil Rights Act is properly interpreted as an anti-oppression principle. Finally, it provides an explanation for the ideological strife over the issue of discrimination for the past three decades and draws some implications about how both the Equal Protection Clause and the Civil Rights Act should be interpreted in the future.

The Hidden Costs of International Dispute Settlement: WTO Review of Domestic Anti-Dumping Decisions

Abstract: The increasingly international scope of some economic activities is correlated with closer integration of national and international legal arrangements. With the creation of the World Trade Organization (WTO), international scrutiny of national compliance with international trade obligations has become markedly more legalized. WTO panels review actions of WTO member states and issue decisions that are effectively binding upon the parties to the dispute. Among other things, these panels conduct direct reviews of some national administrative actions. This article examines the experience in WTO practice with a special standard of review - inserted at the behest of the United States and similar in wording to the Chevron standard used in U.S. administrative law - for panels to apply in assessing whether national anti-dumping measures conform to WTO obligations. I find that the special standard of review has had essentially no effect upon the review of national anti-dumping actions by the WTO. A canvass of the possible explanations for this outcome (e.g., hostility by WTO panelists to national trade restricting actions) is inconclusive, as is a review of the serious normative arguments for and against the WTO practice. I then add a geopolitical perspective to the analysis - specifically, the asymmetrically important position of the United States in the international trading system. I conclude that, as a dynamic matter, the WTO's disregard of the special standard of review will likely induce a response by the United States that produces "deadweight" losses to the trading system as a whole. Thus, regardless of one's view of anti-dumping laws, the WTO's disregard of the negotiated standard of review may be undesirable. This analysis reveals the limitations in transposing features of a national legal system to the very different institutional context of an international legal system and thus also suggests the potential for WTO governance problems well beyond review of anti-dumping laws.

Public Health Law in an Age of Terrorism: Re-thinking Individual Rights and Common Goods

Abstract: The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. Public health preparedness also requires a sound legal infrastructure. This article presents and defends the provisions of the Model Emergency Health Powers Act (MSEHPA). The Center for Law and the Public's Health at the request of the U.S. Centers for Disease Control and Prevention (CDC) and in collaboration with governors, legislators, attorneys general, and public health officials wrote the MSEHPA. First, this article explains the provisions of MSEHPA. The MSEHPA has been adopted in whole or part in 20 states and the District of Columbia. Second, this article shows why extant public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, all of the critical variables for public health preparedness. Finally, the article offers a systematic defense of MSEHPA. The Model Act has galvanized the public debate around the appropriate balance between public goods and individual rights. This defense shows how the Model Act creates strong public health powers, while safeguarding individual freedoms (adopting clearer standards and more rigorous procedures than existing statutes). In a country to tied to rights rhetoric, any law reform initiative that has the appearance of strengthening governmental authority is bound to travel in tumultuous political waters.

Rules, Discretion, and Authority in International Financial Reform

Abstract: Proposals to reform the "international financial architecture" in the wake of the global financial crisis of 1997-98 echo the traditional debate over the merits of rules versus discretion in the administration of government functions. Proposals for rules-systems to govern International Monetary Fund (IMF) assistance and for international bankruptcy regimes promise solutions to the problems of moral hazard and collective action that contribute to financial crises, but they disregard key financial market characteristics and the differences between regulating sovereigns and private market actors. The official reform agenda eschews the rigidities of rules-systems in favor of a mix of reforms initiated without basic changes in relevant international and national legal rights and obligations, in a way that parallels central bank policies in containing domestic financial crises. The differences in authority and credibility between national central banks and the IMF make this policy of discretionary eclecticism suspect in an international context, validating to some degree the concerns of the rules-proponents. While some alternative approaches try to blend elements of rules-systems and discretionary judgment, none appears likely to bridge this authority gap successfully. This circumstance reflects the problems of regulating global economic activity in a world of nation-states and suggests that the world will remain vulnerable to damaging financial crises in the future.

Taming the Animal Spirits of the Stock Markets: A Behavioral Approach to Securities Regulation

Abstract: Recent advances in behavioral finance and economics have offered fascinating, albeit tentative, suggestions that may be useful to securities law policy-makers, especially in the aftermath of Enron and similar scandals. Because of the tentative nature of the findings, however, strong incorporation seems premature. After reviewing some of the literature, I look at three different problem areas - internet fraud, selective disclosure and the measurement of damages in class actions - where this literature might at least provoke creative ideas on how to respond, even if it doesn't generate a clear-cut solution.

Shareholder Litigation: Reexamining the Balance Between Litigation Agency Costs and Management Agency Costs

Abstract: Shareholder lawsuits are a principal legal means to control management agency costs in corporations, yet they generate their own agency costs from the attorneys who bring representative litigation. The key policy question, and one that is central to good corporate governance, has long been how to properly balance the positive management agency reductions from shareholder litigation against the often-maligned litigation agency costs. We address the tradeoff inherent in this debate using our empirical study of shareholder litigation in Delaware. Our data set of all 1000 corporate fiduciary duty cases filed in Delaware in 1999 and 2000 is the largest empirical study of shareholder litigation. We find that more than 80% of these cases are class actions against public companies challenging one type of director decision - whether or not to participate in a corporate acquisition. By contrast, derivative suits, the traditional shareholder litigation that is the staple of corporate law casebooks, make up only about 14% of all fiduciary duty suits. The acquisition-oriented class actions are a new, previously unstudied category of representative litigation, an area long dominated by studies of state derivative suits and federal securities fraud class actions. We find these suits do provide some management agency costs reductions, but these are concentrated in only one subset of the suits that are brought. Settlements leading to relief in an acquisition setting are not spread across all acquisitions complaints (including hostile, second bidder acquisitions etc.), but rather concentrated where there is a majority shareholder who is attempting to cash-out the minority interest held by public shareholders on terms that have been picked by the majority. On the opposite side of the equation - whether these suits possess high litigation agency costs - we find conflicting evidence. The acquisition oriented class action suits have many characteristics that have been identified in other contexts as indicators of agency costs (e.g., suits filed quickly, many suits per transaction). Yet, these litigation agency costs are below the level of perceived costs that spurred securities fraud legislation, for example. We suggest that Delaware could reduce the litigation agency costs associated with class actions without increasing management agency costs by instituting two procedural reforms. First, Delaware should enact a lead plaintiff provision, similar to that adopted for federal securities fraud class actions in PSLRA, to encourage larger investors to become more active monitors of fiduciary duty litigation. Second, we suggest that Delaware should put in limitations on professional plaintiffs as in PSLRA in order to reduce litigation agency costs further. Our article also examines derivative lawsuits from the two-year period, but we find that they do not look much like our acquisition cases (e.g., longer time to file and to settle, fewer suits per transaction and more motions). Derivative cases in our database are concentrated in areas where management agency costs seem likely to be high and produce a number of beneficial settlements that are concentrated in duty of loyalty contexts. Given these characteristics and the current balance between reducing management agency costs and increasing litigation agency costs in derivative litigation, we suggest that Delaware could loosen some of the restrictions that it has placed on shareholder plaintiffs in derivative cases.

The Model State Emergency Health Powers Act: Public Health and Civil Liberties in a Time of Terrorism

Abstract: The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. Public health preparedness also requires a sound legal infrastructure. This article presents and defends the provisions of the Model Emergency Health Powers Act (MSEHPA). The Center for Law and the Public's Health at the request of the U.S. Centers for Disease Control and Prevention (CDC) and in collaboration with governors, legislators, attorneys general, and public health officials wrote the MSEHPA. First, this article explains the provisions of MSEHPA. The MSEHPA has been adopted in whole or part in 20 states and the District of Columbia. Second, this article shows why extant public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, all of the critical variables for public health preparedness. Finally, the article offers a systematic defense of MSEHPA. The Model Act has galvanized the public debate around the appropriate balance between public goods and individual rights. This defense shows how the Model Act creates strong public health powers, while safeguarding individual freedoms (adopting clearer standards and more rigorous procedures than existing statutes). In a country too tied to rights rhetoric, any law reform initiative that has the appearance of strengthening governmental authority is bound to travel in tumultuous political waters.

The New Asylum Rule: Improved but Still Unfair

Abstract: In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) This article discusses how two specific provisions of the IIRIRA - the one-year deadline on asylum applications and the expedited removal provisions - unnecessarily cause hardship and injustice to asylum-seekers It also assesses the response of the Immigration and Naturalization Service (INS) and suggests needed regulatory and statutory reform Recognizing that even regulatory reforms will not eliminate many of the injustices caused by the IIRIRA, the article recommends enactment of the Refugee Protection Act, currently pending in Congress First, the article discussed the one year filing deadline and some of the changes that have been made to it since its introduction in the IIRIRA in 1996 The one-year deadline for asylum seekers requires asylum seekers to apply for asylum within one year from their time of entry into the United States The authors recommend that if the deadline is not repealed, the existing exceptions for "extraordinary" and "changed" circumstances should be augmented to include delayed awareness of changed country conditions, threats to an applicant's family living abroad, and genuine belated discovery of the law They also recommend changes in the regulatory definition of the exception for ineffective assistance of counsel Second, the article discusses the IIRIRA's grant of authority to the INS to engage in expedited removal Under the expedited removal provisions, an individual who is detained at the United States border because he or she does not have the proper documentation to enter, may be immediately deported at the discretion of the INS inspector back to his or her home country without an administrative or judicial hearing The article preliminary states that expedited removal should be limited to extraordinary migrantion situations It then discusses specifically what can be done at each stage of interrogation of the asylum-seeker by INS inspectors to make the system fairer for asylum-seekers For example, the authors recommend numerous changes to the secondary-inspection stage of the removal process, where airport-based inspectors determine if a refugee is afraid of returning home The authors also point out the need for numerous improvements to be made at the stage of the process during which INS determines whether aliens have a "credible fear" of persecution, permitting them to apply for asylum before an Immigration Judge The article concludes with strong support for the pending Refugee Protection Act

Personal Privacy and Common Goods: A Framework for Balancing Under the National Health Information Privacy Rule

Abstract: The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to "covered entities" (health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or "protected health information" (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities' privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosure. Through the regulations, HHS attempts to set a "floor" for protections that, it suggests, "balance[s] the needs of the individual with the needs of society." Reaching this balance, however, is precarious. The national privacy rule does not always achieve a fair and reasonable allocation of benefits and burdens for patients and the community. We suggest a framework for balancing that values privacy and common goods, without a priori favoring either. We instead seek to maximize privacy interests where they matter most to the individual and maximize communal interests where they are likely to achieve the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to individuals is low, we suggest that public entities should have discretion to use data for important public purposes. Provided that the data are used only for the public good (e.g., research or public health), and the potential for harmful disclosures are negligible, there are good reasons for permitting data sharing. Conversely, if data are disclosed in ways that are unlikely to achieve a strong public benefit, and the personal risks are high, individual interests in autonomy should prevail. Consequently, for these kinds of disclosures, the law should strictly prohibit the release of information without the patient's consent. Through this framework we attempt to maximize individual and communal interests in the handling of identifiable health data.

Securities Fraud as Corporate Governance: Reflections Upon Federalism

Abstract: Federal securities law and enforcement via securities fraud class actions today has become the most visible presence in regulating corporate governance State law, long at center stage in discussions of corporate governance, continues to provide the legal skeleton for the corporate form and state fiduciary duty litigation continues as a frequent means to monitor managers Yet, in today's world, state law does so almost entirely in the specific contexts of decisions about acquisitions or in self-dealing transactions The empirical evidence in this Article illustrates that corporate governance outside of these areas has passed to federal law and in particular to shareholder litigation under Rule 10b-5 The Sarbanes-Oxley Act of 2002, passed by Congress in the wake of the current corporate accountability scandals, provides new evidence of the expanded role of federal law But, the move to federal corporate governance is broader than that law and has a longer history than the current scandals The ascendancy of federal law in corporate governance reflects at least three factors First, disclosure has become the most important method to regulate corporate managers and disclosure has been predominantly a federal, not a state, methodology Second, state law has focused largely on the duties and liabilities of directors, and not officers, and federal law has increasingly occupied the space defining the duties and liabilities of officers Officers have become the fulcrum of governance in today's corporations Third, federal shareholder litigation based on securities fraud has several practical advantages over state shareholder litigation based on fiduciary duty that have contributed to the greater use of the federal forum As a result of these trends, federal law now occupies the largest part of the legal corporate governance infrastructure in the 21st century The outpouring of suggested reforms that have followed in the wake of Enron and WorldCom have focused on federal law and on the conduct of officers and directors, rather than state law, which in practice, focuses mainly on directors Indeed, the discussions about reforms have excluded state law almost entirely In this article, we develop the idea of federal law as corporate governance in three parts organized around history, empirical data, and analysis In Part I, we begin with the traditional legal template State corporate law is the focus and federal securities law plays a supporting role In Part II, we present empirical data on the use of both federal and state litigation to regulate corporate governance We begin with a data set we have developed of securities fraud class action complaints filed in 1999 Our analysis of those complaints shows that securities fraud class action litigation is being used mostly in areas that relate to the managers' operation of the business Not surprisingly, for example, many of the complaints raise concerns about the ways in which managers have recognized revenues or engaged in some form of accounting manipulation From that base, we expand the story using data developed by others on securities fraud class actions more generally Then, we compare transactions that give rise to securities fraud claims to another data set that covers all corporate cases filed in the Delaware Chancery Court for that same year The result is a surprisingly narrow focus for state litigation and a much broader one for federal suits, revealing a gap in the standard learning about corporate governance In Part III, we address how the federal securities fraud picture we provide might fit with state shareholder litigation in a current theory of corporate governance

Public Health Ethics: Mapping the Terrain

Abstract: Public health ethics, like the field of public health it addresses, traditionally has focused more on practice and particular cases than on theory, with the result that some concepts, methods, and boundaries remain largely undefined. This paper attempts to provide a rough conceptual map of the terrain of public health ethics.Public health ethics, like the field of public health it addresses, traditionally has focused more on practice and particular cases than on theory, with the result that some concepts, methods, and boundaries remain largely undefined. This paper attempts to provide a rough conceptual map of the terrain of public health ethics. We begin by briefly defining public health and identifying general features of the field that are particularly relevant for a discussion of public health ethics.Public health is primarily concerned with the health of the entire population, rather than the health of individuals. Its features include an emphasis on the promotion of health and the prevention of disease and disability; the collection and use of epidemiological data, population surveillance, and other forms of empirical quantitative assessment; a recognition of the multidimensional nature of the determinants of health; and a focus on the complex interactions of many factors — biological, behavioral, social, and environmental in developing effective interventions.

Balancing Communal Goods and Personal Privacy Under a National Health Informational Privacy Rule

Abstract: The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to covered entities (meaning health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or protected health information (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosures. Through the regulations, HHS attempts to protect individual privacy while recognizing legitimate needs for such data to process health claims and deliver medical care as well as provide for communal goods (including public health and health research). Many of these provisions leave significant gaps in privacy protection. At times the regulations promote inappropriate trade-offs between the public welfare and individual privacy. The regulations inadequately protect privacy in certain contexts, including consent requirements for use and disclosure of PHI for health care purposes and some fair information practices provisions. In contrast, the regulations sometimes fail to assure that information can be used when necessary for significant communal benefits or require substantial burdens on the health care industry without providing meaningful protection for patients.

Takeover Regulation After the 'Convergence' of Corporate Law

Abstract: Recent scholarship on corporate governance, cutting across law, finance, government and economics, has centered around whether or not corporate law is converging into one dominant model within a competitive global capital market. Much of current academic scholarship (with strong dissents) suggests a convergence in this competition toward the dispersed ownership model with its reliance on strong securities markets, extensive disclosure and the use of the market for corporate control to discipline management. Often this is linked to the recognition of shareholder primacy in corporate governance. Against the backdrop of such global discussions, this article focuses on the role for takeover regulation in a dispersed ownership system, a reach designed to broad enough to encompass the American and Australian legal systems as well as the United Kingdom. Takeover regulation necessarily weaves two relationships - first, the interaction the bidder company and the shareholders of the target and second, a separate but necessarily overlapping relationship between the shareholders of the target and their own management. Poison pills, for example, impact both relationships - they prevent a bidder from coercing target shareholders at the same time that they empower managers to prefer their view of the corporation over that of the shareholders. The focus here is on the second relationship and the different methods visible in national legal systems to address this problem. The American system, illustrated by Delaware's law, relies on courts and judicial enforcement of fiduciary duty to decide when managers have overstepped their bounds in imposing defensive tactics. Other dispersed ownership jurisdictions rely on self-regulatory organizations or governmental bodies to limit director defensive tactics in a way that necessarily empowers collective shareholder action.

When Lawyers Advise Presidents in Wartime: Kosovo and the Law of Armed Conflict

Abstract: The events of September 11 changed how we perceive national security as a society, a government, and as individuals. This is as true of national security specialists, who have been aware that America has been at war with terrorism sine at least the 1990s, as it is for those whose sense of geographic security was shattered in New York and Washington. There is talk of “new war” and “new rules,” and concern that we not apply twentieth-century lessons to a twenty-first-century war. Over time, September 11 and its aftermath will test our interpretation and application of domestic law. It may also test the traditional framework under international law for resorting to and applying force. But much will, and should, stay the same for lawyers. As a result, the objective of this paper is to give some personal insight into the application of the law of armed conflict to the 1999 Nato Kosovo air campaign from the perspective of a lawyer serving the president as commander in chief. National-level legal review is critical to military operations, not just in determining whether the commander in chief has domestic and international legal authority to resort to force, but also in shaping the manner in which the United States employs force. Lawyers also have an important role to play in sustaining “good-government” process, offering a degree of detachment and long-term perspective.

Constructing Paternalist Hegemony: Gross, Johnson, and Hadden on Slaves and Masters

Abstract: You know that postmoderism has at least begun to influence the study of slavery in the United States when two important books each talk about the "gaze" (Johnson, pp. 162, 165; Gross, p. 131).1 The distance between earlier works and these is, however, smaller than one might think. Both Johnson and Gross are engaged in a conversation about understanding slavery, the contours of which were defined by Eugene Genovese's masterwork (Genovese 1974). And, despite their misgivings about what they take to be

Digital Architecture as Crime Control

Abstract: This paper explains how theories of realspace architecture inform the prevention of computer crime. Despite the prevalence of the metaphor, architects in realspace and cyberspace have not talked to one another. There is a dearth of literature about digital architecture and crime altogether, and the realspace architectural literature on crime prevention is often far too soft for many software engineers. This paper will suggest the broad brushstrokes of potential design solutions to cybercrime, and in the course of so doing, will pose severe criticisms of the White House's recent proposals on cybersecurity. The paper begins by introducing four concepts of realspace crime prevention through architecture. Design should: (1) create opportunities for natural surveillance, meaning its visibility and susceptibility to monitoring by residents, neighbors, and bystanders; (2) instill a sense of territoriality so that residents develop proprietary attitudes and outsiders feel deterred from entering a private space; (3) build communities and avoid social isolation; and (4) protect targets of crime. There are digital analogues to each goal. Natural-surveillance principles suggest new virtues of open-source platforms, such as Linux, and territoriality outlines a strong case for moving away from digital anonymity towards psuedonymity. The goal of building communities will similarly expose some new advantages for the original, and now eroding, end-to-end design of the Internet. An understanding of architecture and target prevention will illuminate why firewalls at end points will more effectively guarantee security than will attempts to bundle security into the architecture of the Net. And, in total, these architectural lessons will help us chart an alternative course to the federal government's tepid approach to computer crime. By leaving the bulk of crime prevention to market forces, the government will encourage private barricades to develop - the equivalent of digital gated communities - with terrible consequences for the Net in general and interconnectivity in particular.

The Limitations of Arbitration

Abstract: One of the casualties of the Asian financial crisis has been the comforting notion that arbitration permits international transactions to avoid unpredictable local courts. A string of rulings by Indonesian, Pakistani, and Indian courts illustrate the limits of arbitration. These rulings have been prompted by foreign exchange crises, allegations of corruption, disputes about privatization, political instability, and, sadly, limited respect for contractual obligations. To project developers operating in an unstable country, it may appear that international arbitration has most value if the developers are prepared to obtain recovery solely from offshore assets. Even then, the time and expense involved in recovery efforts is significant.