Showing papers by "Georgetown University Law Center published in 2003"

The built environment and its relationship to the public's health: The legal framework

Abstract: The built environment significantly affects the public's health. This was most obvious when infectious disease was the primary public health threat during the industrial revolution; unsanitary conditions and overcrowded urban areas facilitated the spread of infection. However, even today in the age of chronic diseases there remains an important connection between population health and the built environment. Physical spaces can expose people to toxins or pollutants and influence lifestyles that contribute to diabetes, coronary vascular disease, and asthma. Public health advocates can help shape the design of cities and suburbs in ways that improve public health, but to do so effectively they need to understand the legal framework. This article reviews the connection between public health and the built environment and then describes the legal pathways for improving the design of our built environment.

Ethical and legal challenges posed by severe acute respiratory syndrome: implications for the control of severe infectious disease threats

Abstract: The appearance and spread of severe acute respiratory syndrome (SARS) on a global level raised vital legal and ethical issues. National and international responses to SARS have profound implications for 3 important ethical values: privacy, liberty, and the duty to protect the public's health. This article examines, through legal and ethical lenses, various methods that countries used in reaction to the SARS outbreak: surveillance and contact tracing, isolation and quarantine, and travel restrictions. These responses, at least in some combination, succeeded in bringing the outbreak to an end. The article articulates a set of legal and ethical recommendations for responding to infectious disease threats, seeking to reconcile the tension between the public's health and individual rights to privacy, liberty, and freedom of movement. The ethical values that inform the recommendations include the precautionary principle, the least restrictive/intrusive alternative, justice, and transparency. Development of a set of legal and ethical recommendations becomes even more essential when, as was true with SARS and will undoubtedly be the case with future epidemics, scientific uncertainty is pervasive and urgent public health action is required.

DRM and privacy

Abstract: The future of privacy is increasingly linked to the future of copyright enforcement. In their push to control the proliferation of unauthorized copies, and to maximize profit from information goods distributed over the Internet, copyright owners and their technology partners are designing digital rights management (DRM) technologies that will allow more perfect control over access to and use of digital files. The same capabilities that enable more perfect control also implicate the privacy interests of users of information goods. Although DRM technologies vary considerably, at the most general level they represent an effort to reshape the practices and spaces of intellectual consumption. They also create the potential for vastly increased collection of information about individuals' intellectual habits and preferences. Quite apart from the questions of intellectual property policy that surround DRM technologies, therefore, the proper balance between DRM and user privacy is an important question in its own right. Interrogating the relationship between copyright enforcement and privacy raises deeper questions about the nature of privacy and what counts, or ought to count, as privacy invasion in the age of networked digital technologies. This Article begins, in Part II, by identifying the different types of privacy interests that individuals enjoy in their intellectual activities and exploring the different ways in which DRM technologies threaten these interests. Part III considers the appropriate scope of legal protection for privacy in the context of DRM, and argues that both the common law of privacy and an expanded conception of consumer protection law have roles to play in protecting the privacy of information users. Finally, Part IV considers whether DRM technologies and standards processes themselves might be harnessed to protect privacy.

Public health and the built environment: historical, empirical, and theoretical foundations for an expanded role.

Abstract: In 2000, the Center for Disease Control and Prevention’s National Center for Environmental Health issued a report that explored some of the ways in which “sprawl” impacts public health. The report has generated great interest, and state health officials are beginning to discuss the relationship between land use and public health. The CDC report has also produced a backlash. For example, the Southern California Building Industry Association labeled the report “a ludicrous sham” and argued that the CDC should stick to “fighting physical diseases, not defending political ones.” In retrospect, it is probably unfortunate that this report was funded by an organization called “Sprawl Watch.” “Spraw” is a word that has no clear meaning but is applied to a huge range of issues involving suburban development.

Public Stem Cell Banks: Considerations of Justice in Stem Cell Research and Therapy

Abstract: If stem cells fulfill their therapeutic promise, moving them from the laboratory into the clinic will raise several concerns about justice. One concern is that, for biological reasons alone, stem cell-based therapies might not be available for every patient who needs one. Worse, depending on how we address the problem of biological access, they might benefit primarily white Americans. We can avoid this outcome—although at a cost—by carefully selecting the stem cells we make available.

The issue of state action/horizontal effect in comparative constitutional law

Abstract: This article examines the horizontal effect of constitutional norms (or the “state action” problem) in several constitutional systems. It argues that the difficulty of the issue varies depending on two features of such systems, their structures and their ideological commitments. Systems with generalized and centralized constitutional courts will find the issue of horizontal effect easier than systems with specialized constitutional courts, and particularly systems with strongly federal arrangements. Systems with greater commitments to social democratic norms will find the issue easier than systems with weaker social democratic commitments. The article also examines ways of resolving the state action problem, either through substantive constitutional doctrine or through weak forms of judicial review as illustrated by the Grootboom decision of South Africa’s Constitutional Court. Liberal constitutions identify human rights that ought not be violated. But by whom? An important strand in liberalism focuses on creating political structures that simultaneously empower and limit governments. Put crudely, this strand leads constitutionalists to pay primary attention to the threats to human rights that government poses. Another strand takes the human rights themselves as a focus. It notes that corporations and nongovernmental actors can threaten human rights, too. Governments and corporations can discriminate on the basis of race; governments and corporations can fire employees for speech with which the employer disagrees. The two strands come together when one observes that the people or corporations exercising “private” power are actually exercising power conferred on them by laws creating and regulating market behavior. Thus, government is always somehow implicated in private decisions. What, though, are the constitutional implications of that observation? That is, is the way in which the government is implicated in decisions by private employers to discriminate and the like sufficient to place some duties on either

Health information privacy and public health.

Abstract: Protecting the privacy of individually-identifiable health data and promoting the public’s health often seem at odds. Privacy advocates consistently seek to limit the acquisition, use, and disclosure of identifiable health information in governmental and private sector settings. Their concerns relate to misuses or wrongful disclosures of sensitive health data that can lead to discrimination and stigmatization against individuals. Public health practitioners, on the other hand, seek regular, ongoing access to and use of identifiable health information to accomplish important public health objectives. The collection and use of identifiable health data by federal, tribal, state, and local health authorities support nearly all public health functions and goals. Identifiable health data are the lifeblood of public health practice. When aggregated, these data help authorities monitor the incidence, patterns, and trends of injury and disease in populations. Health data are acquired by public health authorities through testing, screening, and treatment programs.

DRM and Privacy

Abstract: The future of privacy is increasingly linked to the future of copyright enforcement. In their push to control the proliferation of unauthorized copies, and to maximize profit from information goods distributed over the Internet, copyright owners and their technology partners are designing digital rights management (DRM) technologies that will allow more perfect control over access to and use of digital files. The same capabilities that enable more perfect control also implicate the privacy interests of users of information goods. Although DRM technologies vary considerably, at the most general level they represent an effort to reshape the practices and spaces of intellectual consumption. They also create the potential for vastly increased collection of information about individuals' intellectual habits and preferences. Quite apart from the questions of intellectual property policy that surround DRM technologies, therefore, the proper balance between DRM and user privacy is an important question in its own right. Interrogating the relationship between copyright enforcement and privacy raises deeper questions about the nature of privacy and what counts, or ought to count, as privacy invasion in the age of networked digital technologies. This Article begins, in Part II, by identifying the different types of privacy interests that individuals enjoy in their intellectual activities and exploring the different ways in which DRM technologies threaten these interests. Part III considers the appropriate scope of legal protection for privacy in the context of DRM, and argues that both the common law of privacy and an expanded conception of consumer protection law have roles to play in protecting the privacy of information users. Finally, Part IV considers whether DRM technologies and standards processes themselves might be harnessed to protect privacy.

Observations on the Role of Commodification, Independence and Governance in the Accounting Industry

Abstract: In this Article, we argue the internal corporate governance structure of the big accounting firm is fundamentally flawed, and that this flaw contributed to the current crisis of confidence in the integrity of public reporting. The incentive structure within accounting firms makes it virtually impossible for auditors to be independent of significant clients like Enron. The result has been a change in the balance of economic power between accounting firms and their clients - individual audit partners suffer from client capture. In addition, to their lack of independence, accounting firms and partners lack accountability in part due to the advent of the limited liability partnership structure. Despite these problems, federal securities laws and regulations require auditors to provide independent audits to companies. The result has been the commodification of audits and a market in which audits are bought and sold. As a consequence, audits no longer serve the economic purpose for which they were required - providing information that protects investors and leads to the efficient pricing of securities. Although the provisions of the Sarbanes-Oxley Act offer some help in resolving the capture, governance, and commodification concerns we raise, we conclude that more is needed. Sarbanes-Oxley established the Public Company Accounting Oversight Board. This Board is to register the public accounting firms, set standards for their reports, inspect and investigate the firms, and, when appropriate, sanction firms and individuals. To be successful, the Board will have to replace the incentive system eliminated with the creation of LLPs with its own set of rules and standards, which it will have to enforce vigorously. In addition, Sarbanes-Oxley provides new standards for auditor independence, establishing a requirement that audit firms rotate the partners assigned to clients in order to prevent capture. We conclude that this provision is less likely to achieve its goal, as long as client satisfaction remains the dominant measure of partner performance. Instead, we argue that until lead audit partners are confident that they can fire dishonest clients without fear that doing so will result in the destruction of their own careers, the problems that contributed to the Enron and other significant corporate failures will continue to exist.

Recognizing the Regulatory Commons: A Theory of Regulatory Gaps

Abstract: Political economic theories, legal doctrine and political rhetoric frequently assume that overregulation is a pervasive problem requiring remedial measures. Despite the prevalence of these theories, Professor Buzbee demonstrates how a dynamic that he labels the "regulatory commons" problem can create predictable incentives for legislators or regulators to fail to address even broadly perceived social ills. The Article draws on and enriches the "tragedy of the commons" tale, with its usual focus on an underlying common pool resource and conflicts among users of that resource. Professor Buzbee shows how that literature's focus on the underlying resource and multiple resource users neglects incentives for inattention created by the existence of numerous potential regulators. Where numerous regulators share potential jurisdiction over a regulatory opportunity, and there is a mismatch between those regulators' jurisdictions and the causes and effects of a harmful activity, a regulatory commons dynamic is created. The commons resource here is not the underlying threatened amenity, but the shared regulatory opportunity in a situation of jurisdictional mismatch. Where no regulator has primacy over such a social ill, those seeking a regulatory response will be uncertain where to turn, thereby fragmenting their demands and reducing each regulator's perception of a pressing social need. Potential regulators similarly will find ills encountering a regulatory commons dynamic to be unattractive opportunities for political investment and credit claiming. Regulators are unlikely to be blamed for a problematic status quo, will be unable to control other regulators, and if they choose to act may create ineffective regulation due to others' actions. Furthermore, drawing on public choice scholarship and behavioral law and economics, this Article shows how deviation from the status quo baseline will be especially disfavored in the setting of a dispersed social ills and fragmented regulatory frameworks. Professor Buzbee then reviews prominent overregulation theories, many drawn from public choice scholarship, and shows how such overregulation assumptions are reflected in contemporary administrative law jurisprudence. Propensities to ignore dispersed social ills created by the regulatory commons dynamic can be reconciled with overregulation theories. One can anticipate intermittent and sometimes stringent regulation, often created after events galvanize public perceptions of crisis. Stringent regulation, however, should not be mistaken for comprehensive regulation. The Article closes by discussing implications of the regulatory commons dynamic and offering means to surmount it.

Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of Law

Abstract: Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique contemporary notions of the rule of law, rights and legal equality. A work of reconstruction, it offers a progressive and egalitarian approach to concepts that have become overly associated with the idea of limited government and social conservatism. Focusing on the necessary conditions of cooperative community life, the book presents a vision of law that facilitates rather than frustrates politics, an analysis of rights that boosts our capacities for caring, and an idea of equality that captures a cosmopolitan vision based on the recognition of shared humanity.

The New McCarthyism: Repeating History in the War in Terrorism

Abstract: Many scholars, pundits, and government officials have optimistically argued that the war on terrorism has thus far avoided the mistakes of past crises. Pointing to the punishment of speech during World War I, the internment of the Japanese during World War II, and the imposition of guilt by association during the Cold War, these voices maintain that we have learned from those mistakes, and are less quick to restrict rights and liberties this time around. This article maintains that while there is certainly some truth to the observation, we should not be too quick to congratulate ourselves. History shows that while the specific tactics of prior crises are often avoided in subsequent crises, their place is taken by slightly different tactics that in principle repeat many of the same mistakes. Thus, in learning to avoid past mistakes, we have learned to adapt certain basic methods of control, rather than to repudiate them. And in many respects, we have since September 11 repeated the categorical mistakes of past crises. In particular, in times of fear government is asked to engage in preventive law enforcement. We want to prevent the next atrocity from occurring, not just be able to catch the criminals after the fact. Accomplishing this puts significant strain on the criminal law, which is a cumbersome method for preventive law enforcement. Government adapts in two ways: (1) by expanding the substantive bases of criminal liability, and (2) by seeking to avoid safeguards of the criminal process by exploiting administrative measures to effect control. In this essay, I trace these developments in the current crisis and show their basic affinity to strategies adopted during World War I, World War II, and the Cold War. What we have learned from history is how to mask the repetition, not how to avoid the mistakes.

Transforming Aggressive Prosecution Policies: Prioritizing Victims’ Long-Term Safety in the Prosecution of Domestic Violence Cases

Abstract: Until fairly recently, prosecutors' offices around the country ignored domestic violence cases, failing to press charges in the vast majority of situations and dropping charges prior to conviction in many others. In the 1980s and 1990s, however, the battered women's movement made significant efforts to improve the criminal justice system's response. One way that this effort has met with substantial success is that many prosecutors' offices now have adopted aggressive "no-drop" policies for domestic violence cases. In these jurisdictions, cases proceed regardless of the victim's preferences about prosecution, even if she recants her original story and testifies for the defense.

The Myth of the Law-Fact Distinction

Abstract: We consider and reject the idea that there is an ontological, epistemological, or analytical distinction between questions of law and questions of fact. Rather, we contend that the labels “law” and “fact” refer to the allocation of decision-making authority for pragmatic reasons. This allocation is driven by three factors: (1) the judge-jury relationship, (2) standard conventions concerning the meaning of “law” and “fact,” and (3) a distinction between matters of general import and highly specific and localized phenomena.

The politics of public health: a response to Epstein.

Abstract: Conservatives are taking aim at the field of public health, targeting its efforts to understand and control environmental and social causes of disease. Richard Epstein and others contend that these efforts in fact undermine people's health and well-being by eroding people's incentives to create economic value. Public health, they argue, should stick to its traditional task—the struggle against infectious diseases. Because markets are not up to the task of controlling the transmission of infectious disease, Epstein says, coercive government action is required. But market incentives, not state action, he asserts, represent our best hope for controlling the chronic illnesses that are the main causes of death in industrialized nations. In this article, we assess Epstein's case. We consider his claims about the market's capabilities and limits, the roles of personal choice and social influences in spreading disease, and the relationship between health and economic inequality. We argue that Epstein's critique of public health overreaches, oversimplifies, and veils his political and moral preferences behind seemingly objective claims about the economics of disease control and the determinants of disease spread. Public health policy requires political and moral choices, but these choices should be transparent.

An ethical assessment of anti-aging medicine.

Abstract: This assessment presents and evaluates various ethical arguments for and against anti-aging medicine. After briefly defining human aging and how it could be viewed as a medical problem, the paper reviews scientific evidence that indicates that medical intervention could substantially change the rate of human aging in the foreseeable future. This evidence includes research in biochemistry, cell, and molecular biology (including research on mitochondrial DNA and oxidative stress as well as research on cellular and molecular replacement interventions), non-human animal studies, and human studies. The following six ethical arguments against anti-aging medicine are presented and evaluated: 1) inequity: the poor die young by the millions, while the rich refuse to age; 2) denying aging's immutability; 3) dominating nature, altering and commodifying ourselves; 4) overpopulation: carrying capacity concerns and the rights of future people to be born; 5) ennui: with no natural deadline, life itself outlives its value; 6) ageism: prejudice against the old and the young. The paper then evaluates four ethical arguments in favor of anti-aging medicine: 1) beneficence: duties to maintain health and prevent disease and death; 2) efficiency: slowing down aging would reduce the rates for all of the most common causes of death in developed societies; 3) limited autonomy: freedom to purchase anti-aging medicines that may or may not work, so long as they are not harmful; 4) improved quality of life: more active, healthier, and wiser (two propositions supporting this argument - that anti-aging medicine would allow for a longer, more active, healthier, and fuller life and that wisdom comes from experience, not senescence - are also presented and evaluated). The arguments in favor of anti-aging medicine are found to be more compelling than the arguments against it. The paper concludes with the recommendation that anti-aging medicine should be funded and regulated in ways that facilitate its potential both to reduce the incidence and prevalence of many diseases and to allow for longer, fuller, and more meaningful lives.

What Counts as Fraud? An Empirical Study of Motions to Dismiss Under the Private Securities Litigation Reform Act

Abstract: This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2001. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post-PSLRA, the Second Circuit applies the least restrictive pleading standard to securities claims and the Ninth Circuit applies the most restrictive. We find some evidence that the Ninth Circuit's post-PSLRA reputation as being a tougher venue in which to win securities fraud class actions is born out by a significantly higher dismissal rate. The differences between the two circuits are also reflected in factors that correlate with dismissal. For example, allegations of violations of accounting principles other than revenue recognition correlate negatively with dismissal in the Second Circuit. This coefficient, however, is insignificant in our regressions for the Ninth Circuit. Allegations of revenue recognition violations are insignificant in both circuits, whether or not the issuer has been forced to restate those revenues. The circuits part ways on other factors as well: the Second Circuit is significantly less likely to dismiss cases with allegations of false forward-looking statements, a surprising result given the stringent standards for such statements imposed by the PSLRA. The Ninth Circuit is significantly less likely to dismiss complaints with allegations of '33 Act violations and the Second Circuit is more likely to dismiss cases brought by the Milberg Weiss firm. When it comes to insider trading, however, the two circuits are both skeptical and the allegations correlate with dismissal in both circuits.

Law and Force After Iraq: A Transitional Moment

Abstract: What impact will the Iraq war of 2003 have on international law governing the use of force and on the future of the United Nations Security Council? Some commentators have proclaimed that the military intervention led by the United States amounted to the “death” of the UN Charter and the end of “the grand attempt to subject the use of force to the rule of law.” The Security Council’s failure to reach agreement—in die face of French-U.S. antagonisms—spells the end, they argue, of an effective Council role in addressing major threats to peace and security. My own view is that it is premature to pronounce the “death” of the UN Charter or to give up on future prospects for Security Council agreement on the use of force. We are, nevertheless, at a difficult and precarious transitional moment in the international legal system governing the use of force, and the stark tensions reflected in the differences over Iraq are symptomatic of hard problems that may persist for the foreseeable future. Both the rules and the system need refining and reform. Success in doing so will require imagination and much greater willingness by policy makers to consider law’s potential role, not as a barrier to necessary action, but as a means to enhance global security in the face of emerging threats. In seeking such reform, it will be important to build upon the realism of the Charter’s founders, who combined rules governing the use of force with a clear commitment to credible enforcement action in response to threats to peace and security.

Trade Sanctions and Human Rights - Past, Present, and Future

Abstract: The relationship between the international law of trade and the international law of human rights has commanded an increasing amount of scholarly attention in the past few years, perhaps spurred by the well-known events at Seattle in 1999. This article offers some reflections on this relationship, focusing on the permissibility under international law of imposing trade sanctions against nations that commit violations of international human rights. Part I begins with some reflections on the historical relationship between these two bodies of law. Part I also considers why the human rights community appears to feel threatened by the international trade system, and not the other way around. Part II considers whether, under current trade norms, trade concessions may be suspended in response to human rights violations. Part III turns to the normative question: how should the WTO address human rights?

An Old Judicial Role for a New Litigation Era

Abstract: Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old judicial role. There are two contexts in particular in which scholars have identified problems with judicial practices, but have been unable to agree on solutions. One is pretrial practice, where controversy abounds over the management strategies judges use to cope with overzealous litigants and overcrowded dockets. The other is class action litigation, where debate focuses on judicial review of proposed settlements and the judge's duty to protect absent class members. Although scholars have explored the tradeoffs posed by current practices and proposed reforms in both areas, they have lacked a framework with which to connect these problems or build a consensus for reform. This Article suggests that the framework we need has been available all along. Our best hope of understanding, and ultimately resolving, these controversies lies in a model of judging that prevailed for centuries and was captured by Lon Fuller in the 1950s. Although scholars rarely invoke tradition expressly, their debates over pretrial practice and class action litigation often boil down to a debate over the value and vitality of the traditional judicial role. Fuller identified two core elements of the traditional judicial role: Judges must rely on parties to frame disputes and on legal standards to help them resolve disputes. Scholars have overlooked that judges today sometimes respect these two characteristics and sometimes do not, and that it is precisely where judges stray furthest from tradition - and proceed without the litigant input or legal criteria to which they are accustomed - that judicial conduct triggers controversy. There are powerful reasons why judges should remain faithful to their traditional role even as they update it to respond to new challenges. Judges should do so not for tradition's sake, but rather because their traditional role reflects their core institutional competence, their place in the constitutional structure, and the considered judgment of two centuries of judges who faced problems surprisingly similar to those that judges confront today. This Article explores the institutional, constitutional, and historical underpinnings of the traditional judicial role, highlighting overlooked parallels between the new problems judges face in pretrial practice and class action litigation today and old ones that judges confronted, and largely overcame, in nineteenth-century trial practice and twentieth-century administrative law.

Paved with good intentions: the dynamic effects of WTO review of anti-dumping action

Abstract: Virtually every national trade remedy measure challenged in WTO dispute settlement has resulted in at least partial victory for the exporting country In the anti-dumping area, the special standard of review for national interpretations of Anti-Dumping agreement obligations has had little discernible effect on dispute settlement outcomes This pattern, while applauded by some as promoting liberal trade values, may actually result in less trade liberalization If important trading countries like the United States believe that the Appellate Body will undermine provisions intended to preserve their ability to use trade remedies, they may decline to negotiate further disciplines on the use of these remedies or, possibly, to enter multilateral negotiations entirely Although insufficient information exists to reach definitive conclusions, recent developments suggest that such negative effects are occurring in the Doha Round

The Role of State Law in Protecting Human Subjects of Public Health Research and Practice

Abstract: Public health activities present important ethical issues and risks to human subjects, whether these activities are considered research or practice. The federal regulations designed to protect human subjects during research studies, known as the Common Rule, may apply to a number of public health activities, such as disease reporting, surveys, or review of medical records. The extent that the Common Rule should apply to public health practice is still debated, but the National Bioethics Advisory Commission (NBAC) suggests that state law could offer meaningful guarantees that public health activities will protect the rights and welfare of individuals. This study sought to evaluate whether state public health law provides protection for people comparable to the Common Rule. State statutes that set the powers and duties of health agencies were reviewed to identify provisions that provided protections analogous to those provided by the Common Rule. The Common Rule contains six key protections: 1) consent for data collection; 2) protection of private information in collected data; 3) use of a bona fide, safe, and effective research design; 4) equitable selection of subjects; 5) appropriate data safety monitoring; and 6) protection of vulnerable populations. Our analysis showed that the protection provided to the subjects of public health practice by state law is comparable to the protection provided to research subjects under the Common Rule, but clearly not identical. The Common Rule requires individual informed consent prior to information collection. By contrast, there is no state law requirement for individualized consent for many kinds of data collection; consent may not be revoked; and notice for most people will be formal rather than actual. Privacy protections and data security requirements, which are explicitly outlined in the Common Rule, vary greatly under state public health laws. Data collection plans are not required under state law to be formally reviewed for either scientific or ethical quality. Ethical performance, including protection or inclusion of vulnerable populations, is not an explicit performance measure in the accountability/ management framework of public health. The Common Rule achieves accountability through the Institutional Review Board system; state law obtains accountability more indirectly through courts, elections, and the media. Ultimately, state public health law is an important regulatory resource to protect human subjects, complementing not only the Common Rule, but other ethical standards. The importance of effective public health practice justifies the development and understanding of regulatory approaches that promote excellent public health practice, including respect for human subjects.

Justice Kennedy's Libertarian Revolution: Lawrence v. Texas

Abstract: This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption - sub silentio - of a "presumption of liberty."

The Publicity of Law and the Regulatory State

Abstract: Theorists usually agree that the rule of law requires that the law be public, that is, available so that those whose conduct it governs may discover what it requires of them. In the regulatory state, however, every regulation is likely to be lost in a mountain of other regulations. This would not violate the publicity condition if regulated conduct invariably carries telltale signs that it is likely to be subject to legal requirements ­ but in a technological society even this weaker condition may not be met, because a great deal of seemingly-innocuous conduct may be regulated. The present paper examines the publicity problem raised by regulation in a technological society. It does so by examining the U.S. Supreme Court's mens rea jurisprudence for regulatory crimes, on the question of whether knowledge that one is violating a regulation is an element of the offense. The chief cases are Balint, Freed, United States Minerals, Liparota, Staples, Ratzlaf, and Cheek, along with the 9th Circuit's Weitzenhof decision. As I analyze them, the first four of these cases set out a "signaling theory" of publicity, according to which knowledge that one is violating a regulation need not be proven if the conduct "signals" its own regulability. Selling narcotics, possessing hand grenades, and shipping sulfuric acid are all the sort of thing that one should anticipate are regulable (thus Balint, Freed, and United States Minerals); trafficking in food stamps is not (thus Liparota). However, in Staples the Supreme Court held that possessing a machine gun is not signaling behavior, because so many Americans regard gun ownership as innocent activity. Similarly, Ratzlaf remarks that structuring financial transactions to evade federal reporting requirements can be innocent behavior, apparently because so many Americans regard regulatory dodging as a legitimate pastime. These decisions pose a complication for the signaling theory: Our intuitions about what sort of conduct is intrinsically regulable are affected by the expectations of those around us. Thus, the phenomenon of social cognition creates the possibility of a cultural excuse for regulatory crime. Furthermore, it seems clear that many defendants do not recognize the non-innocence of their behavior because (like the tax resister Cheek) they do not want to recognize it in which case the cultural excuse becomes more like a cultural veto, by which those who dislike a regulation may nullify it (at least once). The paper canvasses several possible solutions to this difficulty, concluding that the needs of legitimate regulation outweigh the requirement of publicity.

Collaborative Corporate Governance: Listing Standards, State Law and Federal Regulation

Abstract: The traditional view of corporate law as arising from state law, with federal law in a supporting role no longer describes the post Sarbanes-Oxley world. This paper presents modern corporate governance as a collaborative process between the federal government (mostly acting through the SEC), state law (mostly acting through the Delaware courts, but also including its legislature and those in other states) and the self-regulatory organizations such as the stock exchanges. The focus is on the third source, particularly the listing requirements of the New York Stock Exchange. The Reforms announced in 2002 portend a dramatic increase in the role of the listing requirement in defining American corporate governance. The interaction between the NYSE and state and federal law is heavily tilted toward its overlap with federal law. The pattern of NYSE regulation of the last decade is that the SEC chair makes a speech or a telephone call identifying a problem, the Exchange convenes a committee of experts and proposes a solution that is sent to the SEC and the various interested parties engage the Exchange and the SEC in discussions about what the law should be. Prominent examples include requirements for independent directors, shareholder approval of stock options, audit committee procedures and one share/one vote rules. This is a different process than what occurs in state law or in direct SEC regulation and it is becoming a larger part of American corporate governance.

Post-Enron Reflections on Comparative Corporate Governance:

Abstract: In the heated debate of the last fifteen years over which of the world’s many different corporate governance systems are best, the shareholder primacy advocates thought they had won at the turn of ...