Showing papers by "Georgetown University Law Center published in 2005"

The use of race variables in genetic studies of complex traits and the goal of reducing health disparities: a transdisciplinary perspective.

Abstract: The use of racial variables in genetic studies has become a matter of intense public debate, with implications for research design and translation into practice. Using research on smoking as a springboard, the authors examine the history of racial categories, current research practices, and arguments for and against using race variables in genetic analyses. The authors argue that the sociopolitical constructs appropriate for monitoring health disparities are not appropriate for use in genetic studies investigating the etiology of complex diseases. More powerful methods for addressing population structure exist, and race variables are unacceptable as gross proxies for numerous social/environmental factors that disproportionately affect minority populations. The authors conclude with recommendations for genetic researchers and policymakers, aimed at facilitating better science and producing new knowledge useful for reducing health disparities.

Jacobson v Massachusetts at 100 years: police power and civil liberties in tension.

Abstract: A century ago, the US Supreme Court in Jacobson v Massachusetts upheld the exercise of the police power to protect the public's health. Despite intervening scientific and legal advances, public health practitioners still struggle with Jacobson's basic tension between individual liberty and the common good. In affirming Massachusetts' compulsory vaccination law, the Court established a floor of constitutional protections that consists of 4 standards: necessity, reasonable means, proportionality, and harm avoidance. Under Jacobson, the courts are to support public health matters insofar as these standards are respected. If the Court today were to decide Jacobson once again, the analysis would likely differ--to account for developments in constitutional law--but the outcome would certainly reaffirm the basic power of government to safeguard the public's health.

The Place of the User in Copyright Law

Abstract: The past decade has witnessed an upsurge of interest, on the part of both copyright owners and copyright scholars, in users of copyrighted works. Copyright doctrine, however, is characterized by the absence of the user. This absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The essay traces the effects of the user's absence, and argues that a theory of the user is needed to restore doctrinal and theoretical balance. Specifically, it is commonly understood that users play two important roles within the copyright system: users receive copyrighted works, and some users become authors. Both roles further the copyright system's larger project to promote the progress of knowledge. But copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole. The models of the user offered by copyright scholars have not helped as much as they could in answering these questions. In broad brush, scholarly efforts to cast the user have produced three fully fledged candidates, each more unrealistic than the last: the economic user, the postmodern user, and the romantic user. As the essay shows, none of these characters provides a satisfying account of the user's role within the copyright system. This essay introduces a new character, the situated user, who engages cultural goods found within the context of her culture through a variety of activities ranging from consumption to creative play, and whose activities are the vehicle through which copyright's collective project is advanced.

Direct vs. Indirect Obligations of Corporations Under International Law

Abstract: International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly -- that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms --- primarily those relating to war crimes, crimes against humanity, and forced labor -- apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed by effective enforcement mechanisms, states would lose control over compliance with the norms. If not accompanied by an effective enforcement mechanism, the norms would probably be widely disregarded. The first option is likely to be strongly resisted by states; the second option would do little for the interests sought to be protected and would be bad for international law.

Judicial Review before Marbury

Abstract: While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was far more common than previously recognized: there are more than five times as many cases from the Early Republic as the leading historical account found. The Article further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries, and they did so even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the federal constitution; and federal courts invalidated state statutes, and, again, they did so even when the statutes could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. The Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute and that courts aggressively protected their power, the power of juries, and the power of the national government.

Ethics, the constitution, and the dying process: the case of Theresa Marie Schiavo.

Abstract: FEDERAL AND STATE COURTS HAVE REACHED A BROAD consensus on matters of death and dying since the seminal cases of Karen Ann Quinlan in 1976 and Nancy Cruzan in 1990. So too has there been substantial consensus in the bioethics literature. Courts and scholars have affirmed a person’s right to refuse life-sustaining treatment and concluded that this right remains intact even if the person is no longer able to speak for herself. Near relatives and the courts should adopt the same course of action the person would have chosen if competent. If there is a broad judicial and scholarly consensus, then why were political leaders and the public so troubled by the heart-wrenching circumstances of Theresa Marie (Terri) Schiavo? A skeptical observer might conclude that the controversy was politically generated, fed by vivid media images of a young, vulnerable woman who appeared sentient. After all, the nation only recently experienced a presidential election in which family values, notably a culture of life, became salient. It may be that matters involving human life require fresh analysis in this new political landscape even though public opinion strongly supported the removal of Ms Schiavo’s feeding tube and opposed federal intervention. Beyond political explanations, the public expressed concern about several aspects of the case: (1) lack of factual and medical clarity—family members took divergent positions and commentators questioned the medical diagnosis; (2) withdrawal of hydration and nutrition—food and water were thought to have special moral significance; (3) the level of decision making—politicians clashed on whether intimate decisions should be made by the family or the government; and (4) the implications for the elderly and disabled, particularly the poor—concerns that the vulnerable would be abandoned and denied life-sustaining treatment. Before exploring these problems, it will be helpful to describe the remarkable facts and judicial history of the case (FIGURE). Terri Schiavo: Facts and Judicial History In 1990, fifteen years before she became a symbol of the right to life movement, Terri Schiavo, then 26, experienced cardiac arrest and sustained severe brain damage. Her plight prompted a contentious decade-long legal dispute that resulted in Ms Schiavo’s percutaneous endoscopic gastrostomy (PEG) tube being removed and reinserted twice. Shortly after Ms Schiavo’s cardiac arrest, her husband, Michael Schiavo, was appointed guardian, without objection from Ms Schiavo’s parents (Mr and Mrs Schindler). In 1992, Ms Schiavo received 2 medical malpractice awards, with most of the funds placed in trust for her care. This began a deep dispute about her treatment and the distribution of the malpractice award. The Schindlers’ attempts to remove Mr Schiavo as guardian and to keep their daughter alive began in the Florida courts in July 1993. The courts took painstaking care in finding the facts, including the appointment of 3 guardians ad litem—independent persons appointed to represent Terri Schiavo’s wishes and interests. During the next 2 decades, the District Court of Appeal of Florida rendered at least 10 decisions considering various aspects of the case; parties sought review by the Florida Supreme Court 4 times; there were several proceedings in the federal courts, including cases filed in district court and appealed to the 11th Circuit; and the US Supreme Court declined to provide relief to interested parties on 4 separate occasions. Throughout the process, the judiciary found that the husband acted appropriately and attentively, the medical diagnosis of persistent vegetative state (PVS) was reliable, and the evidence supported the husband’s conclusion that his wife would not want to live in that condition. Even the guardian ad litem appointed to report directly to the governor concurred. These findings remained constant, surviving numerous, but unsuccessful, motions including pleas for the

Improvisation and Negotiation: Expecting the Unexpected

Abstract: Negotiators must improvise. As the negotiations process unfolds, they work with new information, continually making decisions along the way to achieve favorable results. Skilled improvisational jazz musicians and actors perform in similar ways: they repeatedly practice song chord progressions and notes or scene guidelines before a performance; then, during the performance, they work with the information or the music they hear in order to react and respond, making decisions along the way to produce dazzling music or a compelling scene. In this article, two experts in negotiation, a jazz-improvisation scholar, a former member of an improvisational theater troupe, and a psychotherapist versed in therapeutic improvisational techniques explore the improvisational nature of negotiation. Several aspects of negotiation are similar to improvisation. Both negotiators and improvisational performers need to have a similar mind-set to be successful, both need to recognize and/or change that mind-set at times, and both must craft creative solutions. But there are some significant differences between improvisational performance and negotiation practice, which this article also notes. For example, personal charisma (“star quality”) is a common attribute of successful performers, but not something negotiators may always rely on. Similarly, improvisational artists usually work as a team, while a negotiator is often on his or her own. Nonetheless, the incorporation of improvisation techniques into the negotiation skills repertoire holds great promise for practicing negotiators and is a worthy topic of future negotiation research and teaching.

Copyright, Commodification, and Culture: Locating the Public Domain

Abstract: The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a public domain is. When considered in broader historical context, the term public domain has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presumptively eligible for privatization. This idea meshes well with the current push toward commodification in copyright. The paper then tests this metaphorical construct of the public domain against descriptive and theoretical accounts of the ways that forms of artistic expression develop, and argues that the metaphor in fact describes the public aspects of artistic, intellectual, and informational culture rather badly. Attention to the social parameters of creative practice suggests that the common in culture is not a separate place, but a distributed property of social space. The legally constituted common should both mirror and express this disaggregation. The paper offers a different organizing metaphor for the relationship between the public and the proprietary that matches the theory and practice of creativity more accurately: The common in culture is the cultural landscape within which creative practice takes place. This in turn suggests a need to recalibrate the doctrines that determine the scope of a copyright owner's rights during the copyright term, particularly those that establish the right to control the preparation and exploitation of copies and derivative works.

The Lawyer's Role(s) in Deliberative Democracy

Abstract: This article explores the possible marriage of recent political theory on deliberative democracy with conflict resolution theory and practice. It reviews the theoretical framework for encouraging more active public participation in both governmental and political decision making (Guttman & Thompson, Bohman, Habermas, Hampshire) and asks how processes can be structured to maximize political participation through several different modes of discourse: reasoned argument/principle; trading of preferences/bargaining and appeals to passion, emotion, and deeply held beliefs. The article suggests a variety of different modes of conflict resolution sorted by the need for constitutive, permanent or ad hoc decision-making, plenary vs. committee or task oriented organizational principles and whether deliberations are to be private and confidential or transparent and public, with predictions about how different outcomes will be produced by different process structures. In addition, the article suggests that lawyers might be particularly well suited (with additional disciplinary training) to performing Tocquevillian facilitative roles between and among deliberators in processes that seek to increase participative democracy and improve the quality of decision making.

Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law's Duty of Care as Responsibility for Systems

Abstract: Section 404 of the Sarbanes-Oxley Act has generated a firestorm of controversy. This essay, part of a retrospective on Robert Clark's classic volume, Corporate Law, tries to explain the controversy as the natural product of indeterminacy with respect to both the benefits and costs of internal controls. The indeterminacy has led a variety of groups that benefit from an inflated construction of the liability threat (accountants, lawyers, consultants, IT professionals) to try to capture the interpretation of the requirement in a self-serving fashion. Much of the behavior in the aftermath of the new internal controls standards - especially the emphasis on expensive bottom up detail - is consistent with this account. Though significant benefits have also been generated, the risk is that internal controls resources have not been put to their best use, and that a statutory provision that makes a good deal of sense if thoughtfully administered misses the real reason why internal controls are important: countering the strategic incentives that managers have to hide information and allow information flow to be distorted.

Teaching Law Students How to Feel: Using Negotiations Training to Increase Emotional Intelligence

Abstract: This article suggests that negotiation courses using traditional lectures combined with role plays and simulated exercises can be used to train students in understanding emotion and increasing their emotional intelligence. The article defines emotion and emotional intelligence; describes and analyzes one simulated exercise that has proven to be particularly potent in the classroom for teaching both the theory and practice of emotional intelligence; sets forth the rudimentary components of a possible curriculum for emotions training; and concludes with reasons why law schools and other professional degree-granting programs can and should make training in emotions a curriculum staple.

Rescue Without Law: An Empirical Perspective on the Duty to Rescue

Abstract: For more than a century, legal scholarship on the duty to rescue has proceeded on a sophisticated theoretical plane. Proponents of a duty to rescue have argued that it will decrease the frequency of non-rescue without creating undue distortions or other difficulties. Opponents of a duty to rescue have argued that such statutes are ineffective, infringe on individual liberties, may actually discourage rescue, and are likely to be misused by politically ambitious prosecutors. No effort has been made to test any of these claims empirically, even though from a policy perspective, the critical threshold question - how often do Americans fail to rescue one another in circumstances where only a generalized duty to rescue would require them to do so - is entirely factual. This article provides the first empirical study of the no-duty rule in action. Using more than twenty independent data sources, the article provides a "law and reality" perspective on rescue and non-rescue that complicates - and sometimes is flatly inconsistent with - the positions of both proponents and opponents of a duty to rescue. The results paint a rich and largely reassuring picture of the behavior of ordinary Americans faced with circumstances requiring rescue, and indicate that both more and less is at stake in the debate over the no-duty rule than has been commonly appreciated. Law professors and judges have been fascinated with the no-duty rule for theoretical reasons, but the ongoing debate should not obscure the reality that in the real world, rescue is the rule - even if it is not the law.

Applying Cost-Benefit to Past Decisions: Was Environmental Protection Ever a Good Idea?

Abstract: In this article, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but is a neutral tool for evaluating public policy. In making this argument, these observers have often invoked the use of cost-benefit analysis to support previous regulatory decisions as a sign that this technique can be used to support as well as to undermine protective regulation. As we demonstrate, however, the fact is that cost-benefit analysis would have stood as an obstacle to early regulatory successes. We have compiled three case studies in coming to this conclusion: the removal of lead from gasoline in the 1970s and 1980s, the decision not to dam the Grand Canyon for hydroelectric power in the 1960s, and the strict regulation of workplace exposure to vinyl chloride in 1974. The technique would have gotten the answer wrong in all three cases. Each case study illustrates, in a different manner, the damage that cost-benefit analysis could have done in the past, had it played the central role that is proposed for it today. The problems with cost-benefit analysis of regulations lie deep within the methodology; it would have done no better a generation ago than it does now.

Peace and Justice: Notes on the Evolution and Purposes of Legal Processes

Abstract: This text of the inaugural lecture for the A.B. Chettle, Jr. Chair in Dispute Resolution and Civil Procedure at Georgetown University Law Center presents an intellectual outline (theory and practice) for a house of justice built on the foundations of Lon Fuller, the Legal Process school, Jurgen Habermas' and Stuart Hampshire's social philosophy about democratic processes, the floors of comparative processes, drawing on the work of political theorist Jon Elster and empirical work on legal and political processes and the ceilings of new processes, like consensus building fora, truth and reconciliation commissions and other combinations of legal and political processes. A model of different modes of human conflict resolution is outlined with differentiations of different forms of process (open/closed; plenary/committees; expert/naturalistic; constitutive/permanent/ad hoc). The article suggests a broadened view of what should be taught as legal process - beyond conventional civil procedure to many more forms of human legal and political processes. If process is the human bridge between justice and peace then we much teach about both kinds of processes - those seeking justice and those seeking peace; hopefully they can both be accomplished.

Mental health and due process in the Americas: protecting the human rights of persons involuntarily admitted to and detained in psychiatric institutions

Abstract: En muchos paises de la region de las Americas, las personas con discapacidades mentales pueden ser recluidas en centros psiquiatricos contra su voluntad, indefinidamente, sin apenas justificacion, y con poca supervision o ninguna. Estas circunstancias son una clara violacion de derechos humanos, tales como el derecho a la libertad, y del derecho al procedimiento reglamentario con todas las garantias judiciales, tal como establecen los tratados de derechos humanos con fuerza vinculante en los niveles internacional y regional. Ademas, muchos paises de America Latina y el Caribe no han adoptado leyes especificas en materia de salud mental ni han interpretado los dictamenes constitucionales en el contexto de la salud mental de una manera acorde con los principios y recomendaciones que rigen actualmente en materia de derechos humanos. mecanismos de vigilancia y monitoreo del Sistema Interamericano de Derechos Humanos pueden constituir un instrumento juridico eficaz y de utilidad para promover y proteger los derechos humanos y las libertades fundamentales de las personas con discapacidades mentales; en este sentido pueden suplementar las leyes nacionales o servir como fuente de regulacion en aquellos lugares donde no existen leyes nacionales. Los paises deben promulgar leyes nacionales que confieren una proteccion basica, de acuerdo con las garantias legales, a aquellas personas que hayan sido recluidas en centros de salud mental en contra de su voluntad. Esto ayudaria a garantizar que las personas no sean internadas y retenidas de forma arbitraria, que la discapacidad mental sea lo bastante grave como para justificar su internamiento involuntario, y que la decision de internar y retener a la persona sea revisada periodicamente, de manera eficiente, por un tribunal independiente e imparcial. Consideramos necesaria una aplicacion mas rigurosa de las normas de los derechos humanos por parte del Sistema Interamericano de Derechos Humanos, a fin de lograr que los estados se responsabilicen de la manera como tratan a las personas con discapacidades mentales y que promulguen leyes para proteger los derechos de aquellas que hayan sido recluidas en centros psiquiatricos contra su voluntad.

The Field of Evidence and the Field of Knowledge

Abstract: The trial is fundamentally an epistemological event. We want jurors and judges to know. And we want to know that they know. And we also want to know the conditions when they know, and when, if at all, these conditions obtain. In this article I explore the relationship between epistemological theory and evidence law. Despite recent denials of the relevance of such theory, I show its relevance and importance by demonstrating how current conceptual issues in epistemology intersect with, explain, and clarify conceptual issues in the law of evidence. Part I provides general background on the field of knowledge. Next, Part II discusses in depth recent philosophical work of Laurence BonJour, Alvin Goldman, and Robert Brandom. Finally, Part III applies insights from the first two parts to illuminate the law's epistemology with regard to factual decisionmaking, the nature of probative value, and a puzzle regarding the review of First Amendment facts.

Federal Rules of Statutory Interpretation

Abstract: Federal statutes do not come with instructions, but maybe they should For as long as there have been statutes, lawyers and laymen have puzzled over their inevitable ambiguities Gradually, case by case, courts have developed assorted tools of interpretation Scholars, meanwhile, have conceived esoteric theories of how best to resolve statutory ambiguity And the doctrine and the scholarship have become elaborate and sophisticated But the very richness of this intellectual landscape has resulted in unpredictability and confusion As theories and judges have multiplied, it has become ever more difficult to predict which judge will apply which theory to which case And after centuries of judicial and scholarly effort, there is still no generally accepted theory of statutory interpretation The central, unquestioned premise in this field is that the judiciary is the proper branch to design and implement tools of statutory interpretation Scholars have unreflectively assumed as much, which is why, almost uniformly, they have implicitly aimed their work at the courts This Article challenges that assumption It asks whether Congress can and should help select the tools for interpreting federal statutes The constitutional question turns out to be as important as the answer, because it adds a vital and neglected dimension to the debate about statutory interpretation To ask whether Congress may codify a particular interpretive method is precisely to ask whether the Constitution requires the method that is to be displaced This inquiry proves essential in locating statutory interpretation under the constitutional firmament This Article concludes that Congress has constitutional power to codify some tools of statutory interpretation Congress has used this power in the past, but only sporadically and unselfconsciously, at the periphery of the United States Code The power itself is vast, however, and could transform the landscape of statutory interpretation Because this power has received minimal systematic analysis, there is extraordinary potential for imprudent or unconstitutional overreaching But used wisely, congressional power to legislate interpretive strategies may improve legislative-judicial communication and thus bring our legal system closer to its democratic ideal This article therefore advocates codifying certain interpretive tools and techniques And it suggests that the best form of codification would be as a set of federal rules: the Federal Rules of Statutory Interpretation

Tangled up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations

Abstract: Too often, military and law enforcement authorities have found themselves constrained by inadequate weaponry: the tools available to them, in addressing confrontations with entrenched opponents of various sorts, are either too weak (not sufficing to disarm or defeat the enemy) or too strong (generating unacceptable "collateral damage" in harming innocent people or property). An emerging category of "non-lethal weapons" carries promise for resolving this dilemma, proffering deft new capabilities for disabling, dissuading, or defeating opponents without inflicting death or permanent injury. Some primitive non-lethal weapons (such as truncheons, tear gas, and water cannon) have long been staples in the inventories of police and military forces in the United States and other countries. More sophisticated options (e.g., electronic stun guns or pepper spray) are becoming more common and are increasingly employed in a variety of law enforcement and security situations. Most dramatically, an array of much more sophisticated technologies (including directed energy beams, calmative chemicals, and foam sprays that seal buildings or make an area impassively slippery) are being developed, and could emerge for use by soldiers and police in the near future. These augmented capabilities carry both immense promise and grave risks: they expand the power of law enforcement and military units, enabling them to accomplish assigned missions with greater finesse and reduced casualties. But they may also be misused, they may proliferate to malign applications, and they may inspire leaders to over-rely upon a myth of "bloodless combat." This article explores the emerging world of non-lethal weapons by examining a series of case studies - recent real-world scenarios from three diverse confrontations around the world in which the availability of a modern arsenal of non-lethal weapons might have made a difference, enabling a more successful outcome in the face of deeply entrenched opposition.

Fraud by Hindsight

Abstract: In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that judges actively seek techniques that enable them to correct for psychological biases that might otherwise affect their decision-making. This paper assesses the hypothesis that judges have adopted the "fraud-by-hindsight" doctrine so as to avoid erroneous judgment infected with the hindsight bias. We find that although judges have identified a real problem in human judgment, they are not developing a doctrine to remedy the influence of hindsight on judgment. Rather, they are using this problem of human judgment as the justification for expanding their authority to manage the complex, high-stakes securities cases that come before them. The result provides judges with the greater case-management authority they seek, but leaves the securities litigation without a meaningful doctrine to ameliorate the influence of hindsight on judgment.

Science, politics, and the regulation of dietary supplements: it's time to repeal DSHEA.

Abstract: Since the turn of the century, resourceful entrepreneurs have advertised a wide variety of purportedly simple and painless cures for cancer, including liniments of turpentine, mustard, oil, eggs, and ammonia; peat moss; arrangements of colored floodlamps; pastes made from glycerine and limburger cheese . . . [T]his historical experience does suggest why Congress could reasonably have determined to protect the terminally ill, no less than other patients, from the vast range of self-styled panaceas that inventive minds can devise.1 [Individuals have] the right to be treated by a health care practitioner with any medical treatment (including a treatment that is not approved, certified, or licensed by the Secretary of Health and Human Services) that such individual desires or the legal representative of such individual desires.2 The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be left alone-the most comprehensive of rights and the right most valued by civilized men.3 I. INTRODUCTION Conflict between the orthodox medical community and practitioners of alternative therapies has been a recurring motif throughout the history of medicine. It is not surprising that in today's media and Internet society, where medicine has become as much an industry as a healing art, that many people wish to "take charge" of their bodies, through the latest "blockbuster" medications, whether they be alternative medicines or the more traditional type. Dietary supplements, a major component of complementary and alternative medicine ("CAM"), have become extraordinarily popular in recent years.4 The Dietary Supplement Health and Education Act ("DSHEA")5 was enacted with the goal of facilitating the use of dietary supplements by minimizing their regulation.6 DSHEA raises three major questions concerning policy and politics: (1) Are there essential differences between pharmaceuticals and supplements?7 (2) If so, do these differences justify the radically different approach under which drugs and supplements are regulated today? (3) To what extent should the government regulate any substance used to treat, ameliorate or prevent disease? DSHEA has several critical weaknesses, three of which are of critical importance for this article. First, DSHEA classifies compounds as dietary supplements based on their source, rather than their pharmacologic and physiologic properties.8 This article will argue that DSHEA's definition of supplement is not based on scientific findings or foundations. Second, DSHEA assumes that components of foods cannot cause harm, even when ingested in large amounts, and that therefore supplements should be subject only to regulations dealing with foods rather than with the more stringent regulations applied to drugs.9 DSHEA also assumes that since herbs and botanicals are "natural," they warrant regulation only to the same extent as food components, regardless of their pharmacologic, physiologic, or pathologic attributes, and irrespective of whether they are foods at all.10 This article will maintain that both of these assumptions are erroneous. Third, the marketing of dietary supplements must be accompanied by a statement indicating that these substances are not intended to treat diseased but rather to maintain normal bodily function. This article will claim that this is a meaningless distinction to most consumers, who consider that failure of normal bodily function is a form of disease. This article will conclude that these and other deficiencies inherent in DSHEA render current dietary supplement regulations inherently misleading. …

The Rise and Fall of Textualism

Abstract: The textualist revolution is over. Textualism's past accomplishments are quite impressive - indeed, much more impressive than either its adherents or detractors are willing to acknowledge. Textualists have been so successful discrediting strong purposivism and updating their new brand of modern textualism that they have forged a new consensus on the interpretive enterprise that dwarfs any remaining disagreements. Yet, by failing to acknowledge their successes to date, textualists are jeopardizing their project. Rather than celebrating the recent convergence and claiming victory, textualists keep waging their war against strong purposivism. In so doing, they misrepresent the moderate views of their opponents and so radicalize their own position as to strip it of its core value. If textualists continue on this course, their opponents will be able to claim credit for the moderate approach that prevails today and textualism will be destined for defeat. This Article offers a different path for textualism. Textualists should celebrate the moderate approach to statutory interpretation that prevails today, note the small differences that remain, and mark the dawn of the post-textualist era. Instead of substituting strong textualism for strong purposivism, scholars and judges should embrace a modest approach to statutory interpretation that heeds the lessons of textualism but avoids its pitfalls.

Congressional Descent: The Demise of Deliberative Democracy in Environmental Law

Abstract: In recent years, the formal environmental lawmaking dimension of Congress has become effectively moribund. Earlier Congresses were, by contrast, celebrated for enacting sweeping, demanding environmental laws and for passing significant and increasingly detailed amendments in response to subsequent developments in executive branch agencies, federal courts, and the states. Now, Congress passes almost no coherent, comprehensive environmental legislation and displays no ability to deliberate openly and systematically in response to changing circumstances and new information. Instead, when Congress does now exercise its lawmaking authorities to influence environmental protection policy, it does so primarily through the appropriations process: the sphere of its responsibility that, ironically, has proven to be the least conducive to the kind of deliberative democracy that justifies legislative supremacy in environmental lawmaking. This article describes the ascent and descent of Congress in environmental law, discusses the troublesome implications for environmental law of the increasing dominance of the appropriations process in congressional lawmaking, identifies the major causes of these developments, and concludes by offering some possibilities for congressional reform.

Structuring Securities Regulation in the European Union: Lessons from the U.S. Experience

Abstract: Politics aside, the question of whether the EU should create an SEC is about the trade-offs between scale and accountability. This paper considers that trade-off in the U.S. context, with specific attention the SEC's apparent role as a "global" securities regulator on matters relating to issuer disclosure. The principal claim is that in making enforcement decisions, there will likely be a "home bias" toward domestic enforcement actions that makes extraterritorial actions less likely, thus reducing the incentives to comply. To the extent that this is typical of regulatory behavior, then there may be lessons for Europeans considering the question of institutional design. More broadly, the paper also considers some of the institutional features that make SEC enforcement policy what it is, which may or may not be exportable (or which policy makers in Europe may not want to import) to the European context.

Is the Adversary System Really Dead? Dilemmas of Legal Ethics as Legal Institutions and Roles Evolve

Abstract: This article reviews the history of dispute processes from early English legal history to the present to contest the notion that the vanishing trial is either a new or necessarily problematic development. Anglo-American legal procedure has always been characterized by process pluralism or choices of different fora for different kinds of dispute resolution. The article reviews some of the key developments in movements from trial by ordeal to trial by court and suggests we are in an evolutionary moment or transition away from trial by court to some other process adaptations. The essay then reviews how different processes, including various forms of alternative dispute resolution (not necessarily new, but adaptations of older forms) may require different foundational, orienting and ethical principles and practices and the article suggests what underlying values might be appropriately considered - collaborative human problem solving and recognition of the complexity and multi-party, multi-issue nature of modern legal disputes.

The Regulatory Fragmentation Continuum, Westway, and the Challenges of Regional Growth

Abstract: An unavoidable problem for growing regions is the mismatch of smaller, more parochial local governments and regional dynamics, harms, and social and infrastructure needs. The implications and challenges of regulatory fragmentation, however, are significant for regulatory challenges of all types, especially in areas of overlapping and intertwined regulation such as environmental law. To illuminate these fragmentation conceptions and implications, this paper draws on longer-term research regarding the 1971-85 battles over the proposed New York Westway highway and park project. After reviewing the story of Westway's defeat due to its environmental impacts and a series of legal and political challenges, the article suggests a four-part typology of regulatory fragmentation. Regional ills and projects tend to encounter four types of regulatory fragmentation: temporal, horizontal, vertical, and institutional. This paper then seeks to reconcile two seemingly clashing views about the implications of regulatory fragmentation. Scholars writing from a law and economics perspective suggest in several recent works that multiple regulators sharing actual or potential regulatory turf will tend to create a drag on or stop activities that would be in the collective interest. A seemingly opposite view asserts that in a setting of fragmented governance, where neither citizens nor potential regulators view any person or institution as having regulatory primacy over a particular social ill, "regulatory commons" problems arise, creating incentives for failures to address such shared but dispersed regulatory harms or opportunities. This paper suggests that these two seemingly disparate views actually can be reconciled. Rather than fragmentation creating either one result or another, as might at first appear to be the case, ubiquitous regulatory fragmentation creates a continuum of institutional proclivities and incentives. Those proclivities are heavily dependent on the modality of government action. The article closes by analyzing potential responses to fragmentation.

Refugee Protection in the United States Post-September 11

Abstract: The U.S. refugee resettlement program, was the first refugee protection casualty of the terrorist attacks. American officials perceived resettlement as being particularly vulnerable to security problems. That was not the case with the other major U.S. refugee protection program, the asylum system. That system was effectively revamped in 1995 to address a variety of abuses, in part connected to individuals involved in the 1993 World Trade Center bombing. Yet, even though official attention did not focus on asylum, subtle, significant changes have occurred. This article delineates and assesses these changes by closely examining data and developments at all levels of the asylum system. These more subtle changes cumulatively call into question how robust the system truly is today. Finally, this study calls for major changes to improve the protection of those refugees who manage to reach the United States without government assistance.

Unified family courts

Abstract: Much has been written about the potential success of unified family courts. Unified family court proponents share great optimism and enthusiasm for what they see as a solution to several of the problems facing court systems today. This enthusiasm should be applauded. As with any reform, however, unified family court advocates must stop to consider the possible drawbacks to the system that they propose; otherwise, they might end up with a system that is the same or worse than the one that they were attempting to fix. This article highlights several of the potential problems with unified family courts. It is not a condemnation of unified family courts per se; it is simply a suggestion that reformers proceed with their eyes open, taking time to consider the potential drawbacks of the unified family court system before using valuable resources for its implementation.

Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002

Abstract: Using a comprehensive database of closed claims maintained by the Texas Department of Insurance since 1988, this study provides evidence on a range of issues involving medical malpractice litigation, including claim frequency, payout amounts, defense costs, and jury verdicts. The data present a picture of stability in most aspects and moderate change in others. We do not find evidence in claim outcomes of the medical malpractice insurance crisis that produced headlines over the last several years and led to legal reform in Texas and other states. Controlling for population growth, the number of large paid claims (over $25,000 in real 1988 dollars) was roughly constant from 1990-2002. The number of smaller paid claims declined. Controlling for inflation, payout per large paid claim increased over 1988-2002 by an estimated 0.1 percent insignificant) -0.5 percent (marginally significant) per year, depending on the data set, but actual payouts in tried cases showed little or no time trend. Real defense costs per large paid claim rose by 4.2-4.5 percent per year. Real total cost per large paid claim, including defense costs, rose by 0.8-1.2 percent per year. The prior working paper version of this paper is available at http://ssrn.com/abstract=678601. The working paper version contains color figures, which were converted to black and white in the published version.