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 information-based, some incentive-based, some command-and-control--each of which has indications, strengths, and weaknesses. A desired set of regulatory strategies must then be matched with the appropriate legal and regulatory institutions. A renewed focus on regulatory and institutional design has significant potential to reduce antibiotic-resistant bacterial infections and increase the effective life of existing and new antibiotics.
Doctors as Bankers: Evidence from Fertility Markets
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 generally does not regulate doctors as bankers. Patients largely are left unprotected by current regulations, but they face significant problems when doctors act as bankers. Patients, vulnerable to their physicians' suggestions, often uncritically accept financial advice from their doctors. Instead of shopping for the best loans, they take the loans their doctors select for them. But, doctors face a conflict of interest when choosing which lender to recommend because different lenders charge physicians different amounts when patients pay for services with loans. Also, patients often are left confused when doctors present piecemeal information about lenders, and patients end up taking out loans with unfavorable terms.
In light of these problems, I offer a potential regulatory framework to regulate doctors acting as bankers. I suggest that regulations should require doctors to disclose the basic loan information that the Truth in Lending Act currently requires lenders to disclose. Moreover, policy makers should require physicians to disclose the financial arrangement between themselves and the lenders they recommend and, if they recommend lenders, to recommend to patients at least three potential lenders to encourage price shopping.
Governing the Presidential Nomination Commons
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 widely misunderstood. This Article casts the problem in a different light, demonstrating that the front-loading of the nomination process is a classic tragedy of the commons. Recognizing the problem as a commons dilemma provides a powerful explanation for the trend towards earlier primaries and, more importantly, provides insights into how best to reform the nomination system.
"Undead" Wartime Cases: Stare Decisis and the Lessons of History
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 of history? Is it merely a rhetorical device or should it have some role in determining the stare decisis effect of these old wartime cases? The fact that each of the four cases cited by the Bush Administration has since been set aside by the United States Supreme Court raises questions about whether stare decisis ever applied to them at all. Can the lessons of history answer those questions?
This Article explores the potential legal meanings of the “lessons of history.” It distinguishes and weighs a number of possible models for how history might be used: (1) history as facts complicating or undermining prior decisions; (2) history as precedent-replacement, with the judgments of Congress, the Executive, or others taking the place of that of judges; and (3) history as a vehicle for constitutional principles, like a fear of Executive aggrandizement in wartime or a belief that “the Constitution is not a suicide pact.” Using the four key cases here as examples --Quirin, Yamashita, Hirota, and Eisentrager--the Article examines the benefits and pitfalls of allowing courts to engage in each of these types of analysis. The result is a clearer understanding not only of how history should affect the fate of old wartime cases, but of the roles history can play more generally.
Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation
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 the conditions contained in the statutory text, narrows the reach of Spending Clause legislation. This Article provides a comprehensive look at the development and use of the clear statement rule for federal spending legislation. It uses a single statutory scheme, the Individuals with Disabilities Education Act, as a lens to examine the extent of reliance on the rule, with particular focus on two recent cases. I review the federalism-based justifications for the rule and recommend a rule of appropriate scope and strength. The purpose of giving states notice of their essential obligations under spending legislation is served by a far less rigid version of the rule-- one that looks to the core obligations imposed by the statute, and recognizes notice drawn from legislative history, judicial interpretations, and administrative interpretations, in addition to statutory text.
Dynamic Federalism in Human Rights Treaty Implementation
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 and doctrinally, if the United States is to comply with its commitments under international human rights law. In this Article, I argue that reframing treaty implementation through a dynamic federalist model could be productive and even necessary, if the United States is going to meet its existing international obligations. As an example, I discuss the ongoing litigation over the United States' failure to honor its obligations under the Vienna Convention on Consular Relations (VCCR). Federal actors have relied on federalism concerns to avoid forcing states to remedy violations of Convention rights, thus leaving the question of whether the United States will reach compliance entirely in the hands of the states, which have generally been slow to take up the call. Drawing on a model proposed by Justice Breyer, I contend that adopting a dynamic federalist model to implement and enforce the VCCR could help to move beyond this impasse, and perhaps more importantly, could help realize the benefits of federalism within the context of human rights treaty implementation.
Justice for All?: The Equal Protection Clause and Its Not-So-Equal Application to Legal Aliens
This Comment will argue that all classifications of legal aliens, including nonimmigrant aliens, should be subject to strict scrutiny, rather than rational basis review. Part II will discuss the Equal Protection Clause, the levels of scrutiny, and the criteria the Supreme Court uses to determine which classifications should be subject to each level of scrutiny. Part III will discuss Court precedent in relation to the Equal Protection Clause and how the Fifth and Sixth Circuits have contravened that precedent. Part IV will discuss why classifica-tions of nonimmigrant aliens, just like those of immigrant aliens, should be subject to strict scrutiny. Finally, Part V will discuss the implications of treating nonimmigrant aliens as a suspect class and subjecting laws that discriminate against them to strict scrutiny.
Sex Offender Treatment in the United States: The Current Climate and an Unexpected Opportunity for Change
While sex-offender laws and policies have garnished unquestioning support from a sector of the population largely uneducated about the specifics of their implementation and effects, they have frequently been criticized by scholars, mental health professionals, and others familiar with the realities of contemporary sex-offender treatment. This Comment explores many of these criticisms, from widespread societal implications and efficacy concerns to the frequently disproportional practical difficulties faced by individual offenders and their families. This Comment recognizes that because of the general population's lack of awareness about these issues, lawmakers who would otherwise support sensible and necessary modification of the existing system are often unable to do so without risking political suicide. As a result, this Comment suggests that legislators seize the opportunity presented by the current economic crisis and use the umbrella of budgetary constraints to restructure sex-offender laws and policies in order to inject into the system maximum financial economy, functionality, and justice.
Show Me the Money: The Applicability of Contract Law's Ratification and Tender-Back Doctrines to Title VII Releases
This Article seeks to remove this confusion and set forth the proper role (if any) for the common law contract doctrines of ratification and tender back with respect to a release of Title VII claims. Part II provides the background of these common law contract doctrines. Part III reviews the Supreme Court precedent on the application of the ratification and tender-back doctrines to the release of federal claims. Part IV reviews lower-court precedent on the application of these doctrines to the release of Title VII claims. Part V addresses whether Supreme Court precedent with respect to the application of the ratification and tender-back doctrines to other federal statutes compels a particular result regarding Title VII releases. Part VI discusses the competing policies and principles with respect to whether ratification and tender back should apply to Title VII releases. Lastly, Part VII demonstrates that ratification should apply to Title VII releases, but that the tender-back doctrine should be applied flexibly on a case-by-case basis.
This Field Is Our Field: Foreign Players, Domestic Leagues, and the Unlawful Racial Manipulation of American Sport
This Article argues that the MLS Policy restricting the numbers of international players on its teams' rosters does, in fact, perpetuate unlawful racial discrimination. While the Policy does not facially discriminate against prospective players on the basis of race, and while its drafters may not have intended racial exclusion, the MLS Policy disproportionately and negatively impacts players of color--particularly blacks and Latinos. In that the MLS Policy serves to racially exclude in violation of federal antidiscrimination law, it demands scrutiny. This Article provides that scrutiny, examines the implications the MLS Policy has for America's other premier professional sports leagues, and ultimately argues that MLS should abandon the Policy.