Category: Articles

Rethinking Rights in Biospace – Article by Robin Feldman

From Volume 79, Number 1 (November 2005)
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Twenty-five years ago, federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. Since that time, decisions across five disparate doctrines reflect confusion over the question of whether the definition of a biotechnology invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology.

This Article argues that in uncertain arts such as biotechnology, the definition of an invention should be limited to the state of the art at the time of the invention. Granting rights beyond knowledge at the time of the invention projects an enormous shadow across the future and creates untenable results. The temptation to restrain that reach has led to strange doctrinal twists and an unworkable body of law. After twenty-five years of experience, it is time to rethink our view of the proper shape of rights in this realm.

 

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A Jeffersonian Republic by Hamiltonian Means: Values, Constraints, and Finance in the Design of a Comprehensive and Contemporary American “Ownership Society” – Article by Robert Hockett

From Volume 79, Number 1 (November 2005)
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Use of the phrase “ownership society” to designate an end state toward which one believes that American policy should strive entails certain commitments. The usage cannot mean merely that public policy ought to seek to bring about a society in which some people own some things; we have lived in that society, without interruption, since the first days of our republic. Nor can use of the phrase contemplate merely a society whose law recognizes, vindicates, and protects property rights; again, that has been a central feature of our polity since its first days under our present constitution. To what, then, can the notion of an “ownership society” refer? It must refer to a society whose members are publicly conscious of the individual and the societal value of ownership, and who work systematically to propagate that value among themselves. The “ownership society” (“OS”), that is, not only recognizes, preserves, and protects ownership, but also it celebrates, fosters it, and spreads it. It is, in short, a latter-day rendition of that venerable American ideal, the Jeffersonian “yeoman republic.”

But making a society-shaping and enduring public commitment to ownership promotion raises several antecedent practical tasks that must be addressed both sensibly and sensitively if the project is to put down roots, flourish, and endure. First, the project must be conceived, articulated, and implemented in a manner consistent with the core values and political self-understandings of those who comprise the society that wills to be an OS. Where the society has featured multiple such valuational and political traditions over time, this task further requires that some synthesis of, or overlapping consensus among, these traditions be derived and articulated: an ideologically neutral yet nonetheless value-expressive language must be wrought.

 

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Negotiating Sex – Article by Michelle J. Anderson

From Volume 78, Number 6 (September 2005)
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Adrienne had just turned thirteen. Late one autumn night, after her siblings and parents had fallen asleep, she crawled out of bed, walked downstairs to the basement, unlocked and opened the sliding glass door, and slipped outside.

It was Mike’s idea. He was a varsity basketball player from a nearby high school. Mike proposed they both sneak out and meet on the street halfway between their houses. Wanting Mike to like her, Adrienne agreed.

Mike never showed.

At that hour, the suburban streets were still. Adrienne walked three miles to Mike’s house, where she found him waiting in his front yard. He signaled for her to come into the house. “Don’t make any noise because my parents are asleep,” he said. “They’d kill me if they found us in here.” So throughout the night, Adrienne remained silent.

Mike led her downstairs into the family room. Now that she was inside his house, a deep fear set in, and Adrienne panicked. In her words, “I just completely left my body.” She does not know how her clothes came off. All she remembers is coming back to the intense pain of Mike ramming inside her. He was ripping her apart. She blacked out.

 

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Beyond Tort: Compensating Victims of Environmental Toxic Injury – Article by Albert C. Lin

From Volume 78, Number 6 (September 2005)
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Environmental toxic tort cases often pose difficult problems of proof A substance’s toxicity may be unknown or uncertain. A combination of factors may cause a plaintiffs injury, and the injury may arise many years after a plaintiff’s exposure to a toxic substance. On the one hand, some plaintiffs, particularly those with “signature” illnesses or whose illnesses occur as a cluster of cases, may be able to gather sufficient evidence to support a tort action. On the other hand, it is likely that many environmental injury victims simply fail to recognize their illnesses as tortious injuries and never receive compensation. Cancer and various respiratory ailments, for instance, can resultfrom exposure to commonly found and commonly released pollutants. Because of the difficulty of identifying potential defendants and proving causation, such cases simply fall outside of the tort system. This leaves social costs externalized and victims uncompensated.

In response to this problem, this Article proposes a risk-based administrative system of liability and compensation for exposure to environmental pollutants. At the time pollutants are released, major pollution emitters would pay levies. The levies would be based on the amount of pollutants discharged, the likely exposure of persons to those pollutants, the risk of harmfrom that exposure, and the expected costs of that harm to the victims. Individuals would receive compensation according to the health risk borne by each person as a result of their exposure to the pollution. This compensation-for-risk approach avoids troublesome case-by-case determinations of specific causation. This approach also provides compensation prior to illness, which may facilitate preventive measures. Although the scientific information necessary to support such a system is not yet available, advances in toxic ogenomics, biomonitoring, and environmental monitoring will permit implementation of such a system in the not-too-distantfuture.

 

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The Deconstruction and Reconstruction of Habeas – Article by Brian M. Hoffstadt

From Volume 78, Number 5 (July 2005)
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Habeas is an anomaly in the law of federal courts. For decades now, state courts have solely and finally resolved federal issues with minimal federal superintendency. For nearly as long, however, the federal writ of habeas corpus has not adhered to this general paradigm and has been interpreted to permit federal courts to revisit anew federal issues litigated before state courts in the course of state criminal prosecutions. Indeed, the special treatment of habeas is so longstanding that it is a near-axiomatic contour in the fabric of federal courts law. This Article questions that axiom. Starting from a premise placing high value on theoretical consistency (a premise subject to legitimate criticism), I examine the functional and theoretical differences between the paradigm that typically governs adjudication of federal issues in the state courts (which I dub the “paradigmatic construct”) and the paradigm that applies to adjudication of federal issues in state criminal prosecutions and in subsequent, federal habeas corpus proceedings (the “habeas construct”). This deconstructive exercise reveals that these two constructs are animated by fundamentally different views of the interrelationship of the state and federal judiciaries. Starting from the further premise that the paradigmatic construct is the appropriate baseline (a premise also subject to debate), I then examine two very different approaches to eliminate this theoretical discord. The less aggressive approach attempts to cure the discord by providing a new theoretical basis for habeas that justifies its current contours. The more aggressive approach attempts to cure the discord by reshaping the contours of the writ to treat adjudications of federal issues in the habeas construct more like they are treated under the paradigmatic construct.

 

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Conceptualizing the “Fat Tax”: The Role of Food Taxes in Developed Economies – Article by Jeff Strnad

From Volume 78, Number 5 (July 2005)
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The powerful morbidity and mortality effects of diet combined with growing concern about the obesity “epidemic” have led public health scholars and public interest advocates to call for taxes on food. The proposals fall into two different categories. First, there are “junk food taxes” on less nutritious foods such as soft drinks, candy, or snack foods. Second, there are more ambitious taxes that would apply to a much broader range of foods and food components.

 

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Voting with Your Hands: Direct Democracy in Annexation – Article by Clayton P. Gillette

From Volume 78, Number 4 (May 2005)
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Municipal annexation receives a mixed reaction in the analysis of metropolitan organization. Some commentators, such as David Rusk or Laurie Reynolds, view annexation as the savior of cities that could not otherwise expand in ways necessary for economic success. For these advocates of liberal municipal expansion, annexation promises to reduce ethnic and racial segregation, residential density, inefficiencies allegedly related to metropolitan fragmentation, and per capita costs of public services. They similarly claim that annexation frustrates efforts by nonresidents to take advantage of municipal resources without paying a fair share for their upkeep and enables central cities to increase local tax revenues and control land use at the urban fringe.

Annexations that occur under these circumstances are likely to be described as necessary or appropriate for orderly municipal or regional development by those who favor them. Annexing municipalities and their constituents may portray the resources that they seek through annexation as being properly available to all residents of the region including both the annexing and annexed communities. They may also portray those who oppose annexation as motivated primarily by a desire to monopolize a resource to which they are not entitled or to avoid contributions to the metropolitan area commensurate with the benefits conferred by the central city.

 

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Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns – Article by Richard L. Hasen

From Volume 78, Number 4 (May 2005)
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Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at the time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment.

These precedents are ripe for reexamination in light of the Supreme Court’s new-found deference to campaign finance regulation, culminating in 2003’s McConnell v. FEC, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002 (commonly known as “the McCain-Feingold law” or “BCRA”). McConnell and three other cases that make up what I have termed the “New Deference Quartet” did not concern ballot measures; yet, their analyses of campaign finance laws in the context of candidate elections potentially open up the door to new regulations in the ballot measure context.

This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although it is fairly clear that all three proposed laws would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today.

 

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