Joanna K. Sax

This Essay proposes that the rules governing financial conflicts of interest for scientists within the National Institutes of Health apply to scientists at Academic Medical Centers because scientists at both places receive federal funding. The rules governing financial conflicts of interest within the National Institutes of Health are stricter than the rules at Academic Medical Centers. The cornerstone of financial conflicts of interest rules at Academic Medical Centers is disclosure, which is inadequate. This Essay builds on previous work calling for significant changes to rules addressing financial conflicts of interest, and it promotes changes by calling for the application of stringent rules governing financial conflicts of interest in Academic Medical Centers.

Full article (.pdf) available here.

Colin P. Marks

This Essay explores the possible dual readings of Concepcion in light of the FAA and its interpretation, including Supreme Court precedents.  This Essay concludes that though there is support for interpreting the Concepcion decision narrowly, it is more likely that a broader interpretation was intended, but the metes and bounds of this opinion have yet to be explored.  Nonetheless, under this broad interpretation, the effect on consumers will be to discourage individuals from seeking redress for their claims.  Indeed, the decision may actually encourage businesses to breach contractual obligations with impunity when the individual sums owed are too small to justify— in the mind of a reasonable consumer—the time and effort to seek a remedy.

Full article (.pdf) available here.

Onika K. Williams

The lame duck 111th Congress saw tremendous action in a relatively short period of time, and it was also witness to a phenomenon of social media. Users on websites such as Facebook and Twitter employed social media to send messages to their representatives and to actively participate in the lame duck session. Jon Stewart used television to advocate for Congress’s passing of the James Zadroga 9/11 Health and Compensation Act, and Lady Gaga employed Twitter to support the Don’t Ask, Don’t Tell Repeal Act of 2010. Both bills subsequently passed Congress. The social media phenomenon did not end with the 111th Congress, however, and the 112th Congress saw issue after issue arise, many stemming at least in part from some aspect of social media. This Congress proved that social media’s influence may not always be positive, but its effect is real and should be contemplated in a serious fashion.

Full article (.pdf) available here.

Martha F. Davis & Johanna Kalb

In the past year, initiatives to block judicial consideration of foreign or international law have been introduced in over half of the states. The proposals vary, ranging from the “softer” versions, which codify existing common law principles governing judicial decision making to the more extreme versions, which aggressively bar all consideration of foreign and international law, virtually eliminating judicial discretion regarding the relevance of such law in a particular case. This Essay contends that in all their variations, these anti-transnational law measures pose serious and fundamental challenges to the American judicial system. They undermine our federalist system by ignoring federal constitutional text specifying that ratified treaties and international customary law are the “supreme Law of the Land,” to be enforced by federal and state courts alike. Moreover, the uncertainty they create could have dramatic impacts on the nation’s ability to conduct foreign policy, international trade,  and national security. The result of these proposals, should they be enacted, would likely be frustration of international business transactions, elimination of judicial discretion in individual cases, and restriction on individual freedom to contract. Far from preserving American values, these proposals would serve to undermine them.

Full article (.pdf) available here.

Karen A. Wyle

Any attorney who handles or follows cases involving termination of parental rights will have often read, “This court has long had a highly deferential standard of review in cases concerning the termination of parental rights.” This article addresses several questions that arise from that familiar language:

• Does the Indiana Court of Appeals in fact have a tradition or practice of highly deferential review of termination orders?
• Is this deference greater than the court accords to trial court decisions in other family law matters or in non-family civil appeals?
• If so, on what legal analysis is this special deference based?
• Is it appropriate to give more deference to a trial court’s decision to forever sever the bonds between parent and child than to other trial court decisions, in and outside the area of family law?

As shown in this article, the court is in fact significantly more likely to affirm termination orders than any other kind of civil judgments, including judgments in other family law matters. The Rules of Appellate Procedure also operate to increase the difficulties encountered in appeals of termination orders. This especially unfavorable treatment, however, rests on the slenderest of legal foundations and raises grave constitutional concerns. The challenge is to find an effective and practical way to move toward an appropriate level of appellate scrutiny in termination appeals.

Full article (.pdf) available here.

Michelle R. Gough

The availability of survival and wrongful death damages in 42 U.S.C. § 1983 cases is an area that involves both changing precedent and unaddressed issues within the Seventh Circuit. In both of the aforementioned types of claims, the cases will necessarily involve the tangled application of both state and federal law, and the Seventh Circuit and other federal courts of appeals have struggled to provide a clear, coherent approach to these issues. Indeed, there is strong disagreement among the circuits. Dean Steven H. Steinglass offered the most comprehensive discussion of the nature of both types of claims under § 1983 in Wrongful Death Actions and Section 1983, which was published in the Indiana Law Journal in 1985. However, a subsequent shift in precedent in the Seventh Circuit has significantly impacted the nature and availability of claims under the circumstances giving rise to wrongful death and survival claims. This Article provides an updated discussion of the contours for wrongful death and survival claims asserted under § 1983 by Indiana claimants proceeding in the Seventh Circuit for damages when a loved one dies as the result of a state actor’s behavior that violated § 1983 or when a loved one dies with a pending § 1983 claim.

Full article (.pdf) available here.

Jason C. Miller

With the 2011 redistricting process poised to commence across the country, debates are raging as to who should draw district lines, how to keep those individuals from drawing them for partisan advantage, and the best way to draw minority districts. This paper addresses the largely overlooked area of media markets. Districts drawn to conform with media markets experience higher voter turnout. Moreover, linking a city and its economically-connected suburbs together is simply common sense. Discussing the impact of district conformity, or lack thereof, with media market boundaries on campaign strategy, news reporting, voter participation, grassroots organizing, and candidate recruitment, this paper examines two examples of poorly-drawn districts before proposing that line-drawers consider community boundaries — typically deliniated by media markets — in creating districts. Additionally, this paper urges courts to consider community boundaries among the various factors when deciding between competing plans, and that future scholarship and proposals for reform also examine media markets.

Full article (.pdf) available here.

John W. Hill, Arlen W. Langvardt & Jonathan E. Rinehart

Issues of healthcare availability and quality are among the most profound facing our nation. If a high-quality, accessible healthcare system of a truly national nature is to be devised, electronic connectivity—including increased use of electronic medical records and similar technological advances—must be a key feature. Yet such connectivity may give rise to patients’ concerns regarding the privacy of their medical information. Because such concerns demand respect, a challenge lies in balancing patients’ privacy interests against the important information-sharing interests underlying a national healthcare network. The Health Insurance Portability & Accountability Act (HIPPAA) is a key federal law that addresses many privacy issues regarding patients’ medical information, but HIPAA does not preempt state laws that furnish greater privacy protection than HIPAA provides. Accordingly, there exists a patchwork quilt of differing privacy protection provisions. This Article explores the issues just outlined and stresses the importance of a stronger federal role in standardizing medical information privacy rules, so that the current patchwork quilt of privacy regulations does not impede the development of a national healthcare network.

Full article (.pdf) available here.

Josh Press

Religious custody disputes such as those at the Fundamentalist Church of Jesus Christ of Latter-Day Saints compound in April, 2008 are very complex and are finding their way into courts with increasing regularity. This Essay argues that in responding to these religious custody disputes, courts should abstain from either analyzing a parent’s religious practices for their perceived “risks of harm” to the child, or from applying a flat rule to ensure that the custodial parent’s religious preferences take primacy. Instead, courts should employ the actual or substantial harm standard—which would only bar a parent from fully practicing her religion if it would cause physical or psychological harm to the child—to such situations. Like the other custody approaches, this standard exists for the secular purpose of preventing harm to the children’s physical and emotional well-being. Unlike the other two approaches, however, the actual or substantial harm standard only incidentally affects parents’ free exercise rights. In this way, the actual or substantial harm approach provides courts with a way of avoiding any constitutional violations of the Religion Clauses, and will almost always allow the parents to practice their different faiths.

Full article (.pdf) available here.

Adam K. Magid

This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where deliberate choice is a more convincing explanation. The misleading nature of such a diagnosis, moreover, can lead to legal outcomes inconsistent with the theoretical goals of the criminal law, at least with respect to the insanity defense and the death penalty. This Article does not necessarily call for the complete abolition of the use of diagnostic evidence in criminal proceedings; instead, it highlights some of the perils associated with such evidence so that, at minimum, courts can employ an appropriate level of thoughtful caution when faced with such evidence in the future.

Full article (.pdf) available here.