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All Volumes | Volume 84 | Issue 4

Combating Antimicrobial Resistance: Regulatory Strategies and Institutional Capacity

William M. Sage and David A. Hyman | Article

Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available–some [...]

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Doctors as Bankers: Evidence from Fertility Markets

Jim Hawkins | Article

In a variety of medical contexts, doctors play a prominent role as bankers, lending directly to patients or arranging for patients to obtain loans from third-party lenders. I offer evidence of this activity from fertility markets based on an empirical study of virtually every fertility clinic’s Web site in the United States and on interviews with key market participants. I find that doctors play an important role in patients’ decisions about credit, discussing credit with patients, and even recommending and promoting specific lenders to patients while excluding consideration of other potential lenders.

Despite the prevalence of this conduct, the law [...]

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Governing the Presidential Nomination Commons

Brigham Daniels | Article

States jockeying to hold primaries and caucuses as early as possible has become the central theme of the presidential primary system. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also [...]

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“Undead” Wartime Cases: Stare Decisis and the Lessons of History

Harlan Grant Cohen | Article

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions –Ex parte Quirin, In re Yamashita, Hirota v. MacArthur, and Johnson v. Eisentrager–opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by Executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts–none of which should be repeated.

But what does it really mean to invoke the lessons [...]

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Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation

Terry Jean Seligmann | Article

The vital role of Spending Clause legislation in the operation of our government flies below the popular radar. Not many people realize that programs like Social Security, special education, and the current economic stimulus efforts take the form of laws exercising Congress’s power under the Spending Clause of the Constitution. Spending Clause statutes exercise this power by imposing conditions on the funding recipients. But this source of expansive federal power is under pressure. The United States Supreme Court’s conservative members have developed and begun to use more aggressively a clear statement rule of interpretation that, by placing strict requirements regarding [...]

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Dynamic Federalism in Human Rights Treaty Implementation

Johanna Kalb | Article

In response to the growing academic and political movement that opposes the direct incorporation of treaties into domestic federal law, numerous scholars have proposed that states take on an increased role in the domestic interpretation and implementation of international human rights treaties. The focus of this scholarship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in areas of traditionally federal jurisdiction. Thus far, however, little effort has been directed towards modeling an affirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required, both pragmatically [...]

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