Category: Notes

Taxing Youth: Health Care Reform Writes a Costly Prescription that Leaves the Young and Healthy Paying the Bill – Note by Charles P. Litchfield

From Volume 85, Number 2 (January 2012)
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With the American health care system facing a looming crisis due to unsustainable rates of medical cost inflation, the government has reacted by passing the Patient Protection and Affordable Care Act. While the present ubiquity of third-party payers in the form of health insurance or government programs spawns inefficiencies and perverse incentives that drive market forces to work against, rather than toward, maximum social welfare, the reform bill threatens to exacerbate the very inefficiencies it seeks to avoid. Rather than focusing on controlling medical cost inflation, the bill seeks to include high-risk groups that are normally priced out of the insurance market, thus placing more stress on the payment model. The individual mandate—making health insurance mandatory—ensures that the low-risk young and healthy demographic will bear the cost of this increased burden on the insurance system. This Note examines how the recent health reform bill proposes to restructure the insurance market itself and analyzes the inadequacies of the individual mandate. Further, it briefly explores the constitutional challenges to the mandate and discusses whether the health reform bill is salvageable in light of its deficiencies.

 

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Psychotropic Medication and Foster Care Children: A Prescription for State Oversight – Note by Michelle L. Mello

From Volume 85, Number 2 (January 2012)
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On April 16, 2009, seven-year-old Gabriel Myers locked himself in the bathroom of his Florida foster home and took his own life. Just three weeks prior, Myers was prescribed Symbyax, a combination of antidepressant and antipsychotic drugs not approved by the U.S. Food and Drug Administration (“FDA”) for use in children. Myers’s Department of Children & Families (“DCF”) records document a tragic history of neglect, allegations of sexual abuse, and movement between at least four foster care placements after removal from his mother’s care. Diagnosed with attention deficit hyperactivity disorder, mood disorder, and possibly depression, Myers took several medications including Lexapro and Vyvanse. After his death, DCF appointed a Work Group to assess Myers’s case as well as the use of psychotropic medication for other children in state foster care. While the Work Group determined that safeguards in Florida existed, the “core failures in the system . . . stem[med] from lack of compliance with [such safeguards] and . . . failures in communication, advocacy, supervision, monitoring, and oversight.”

Giovan Bazan was only six-years-old when he was first treated with medication for hyperactivity. Years later, while taking Ritalin at a double dosage, he was prescribed an antidepressant after another physician saw him “so mellowed out that he barely reacted.” Twenty-year-old Bazan is now free of all medications and recognizes that “[t]hey start you on one thing for a problem, then the side effects mean you need a new medicine . . . [a]s a foster kid, I’d go between all these doctors, caseworkers, therapists, and [it] seemed like every time there was a new drug to try me on.”

 

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Closing a Loophole: Headley V. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes – Note by Molly A. Gerratt

From Volume 85, Number 1 (November 2011)
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In 2009, Marc and Claire Headley sued the Church of Scientology International and its affiliate, Religious Technology Center, for violating the Trafficking Victims’ Protection Act (“TVPA”) and for forcing Claire to undergo two abortions. The case was thrown out at the summary judgment phase because the Headleys were considered “ministers” of the Church of Scientology. Under the judicially created “ministerial exception”—an exemption never explicitly endorsed by the U.S. Supreme Court—ministers are barred from suing their religious employer for disputes arising during the course of their employment. Because of the ministerial exception, the Headleys’ accusations have gone uninvestigated, potentially allowing the Church to continue to inflict horrific treatment on other “ministers” in its ranks. This Note begins by analyzing the current state of the exemption and its limits. Utilizing Headley as a case study, this Note concludes that the current limits on the ministerial exception are inadequate and proposes that courts consider the “harm principle” as a limiting doctrine on the exemption. This limiting principle would force the courts to consider physical and societal injuries caused by religious institutional behavior in the ministerial employment relationship in their constitutional inquiries. During the production of this Note, the U.S. Supreme Court heard argument and decided a case concerning the ministerial exception. A brief epilogue addresses the decision and its implications on the limitation set forth in this Note. 

 

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Graffiti and the Constitution: A First Amendment Analysis of the Los Angeles Tagging Crew Injunction – Note by Kelly P. Welch

From Volume 85, Number 1 (November 2011)
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In 2008, a group of taggers known as the Metro Transit Assassins (“MTA”) painted a giant “MTA” tag in the Los Angeles riverbed that was visible from downtown office buildings and freeways. The three-story-high tag extended for half a mile along the riverbed and used an estimated four hundred gallons of paint. The government projected that it would cost $3.7 million to clean up the tag, including taking the necessary precautions to contain the toxic paint and runoff during cleanup. A graffiti historian explained that the tag was “definitely a statement, . . . [t]o do something that big and bold it takes organization.” Seven alleged MTA members were arrested in 2009 for the tag. During the arrests and ensuing searches, law enforcement found specialized tools that enable such large-scale, logistically difficult tagging: high-pressure fire extinguishers filled with paint.

In response to the riverbed tag and a multitude of other MTA graffiti vandalism throughout Los Angeles, the Los Angeles City Attorney filed a complaint in July 2010 seeking a civil injunction against MTA and its members. If granted, the injunction would, among other things, prohibit possession of graffiti tools, prohibit public association with other members of MTA, prohibit profiting from graffiti, and impose a curfew on MTA members. First Amendment challenges to the injunction have already begun: in May 2011, the American Civil Liberties Union (“ACLU”) filed defense motions containing First Amendment challenges to the injunction, but they were denied by the Los Angeles Superior Court. In August 2011, the California Court of Appeals denied defense motions challenging the Superior Court ruling.

 

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From Bombs and Bullets to Botnets and Bytes: Cyber War and the Need for a Federal Cybersecurity Agency – Postscript (Note) by Danielle Warner

From Volume 85, Number 1 (November 2011)
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In September 2010, Iranian engineers detected that a sophisticated computer worm, known as Stuxnet, had infected and damaged industrial sites across Iran, including its uranium enrichment site, Natanz. In just a few days, a sophisticated computer code was able to accomplish what six years of United Nations Security Council resolutions could not. Not a single missile was launched, nor any tanks deployed, yet the computer worm effectively set back the Islamic Republic’s nuclear program by two years and destroyed roughly one-fifth of its nuclear centrifuges. The worm itself included two major components. One was designed to send Iran’s nuclear centrifuges spinning out of control, damaging them. The other component seemed right out of the movies; “the computer program . . . secretly recorded what normal operations at the nuclear plant looked like, then played those readings back to plant operators, like a pre-recorded security tape in a bank heist, so that it would appear that everything was operating normally while the centrifuges were actually tearing themselves apart.”

Stuxnet, to date, is the most sophisticated cyber weapon ever deployed. It acted as a “collective digital Sputnik moment,” bringing to light the important cybersecurity challenges the world faces. What makes cyber attacks so destructive is their ability to travel through the Internet and attack the structures it rests upon. Governments, industrial and financial companies, research institutions, and billions of citizens worldwide heavily populate these global networks. In fact, much of public and private life depends on functioning telecommunications and information-technology infrastructures. Thus, what we deemed to be one of the greatest successes of the twenty-first century, a global communication infrastructure, has now become our biggest vulnerability.

 

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Whose Office Is This Anyway? A Look at the IRS’s New Position on Offshore Lending – Note by William A. Kessler II

From Volume 84, Number 6 (September 2011)
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“Banks don’t lend anymore. Hedge funds have stepped in.” Lee Sheppard wrote these words in 2005, but the financial crisis starting in 2008 has shone a spotlight on this significant change in the reality of modern finance. What role hedge funds may have played in causing the financial crisis is debatable, but few will dispute that U.S. businesses have had trouble finding capital even as the economy, on the whole, has started to recover.

There are many possible contributors to the onset of the capital crunch. Among them are banks, which had difficulties meeting capital requirements, in part because their balance sheets were weighed down by mortgage-backed securities that proved to be less valuable than initially thought, and in part because of changes in accounting rules, as well as increases in minimum capital reserve requirements. The U.S. government and the Federal Reserve responded by combining to invest trillions of dollars to purchase “toxic” securities, guarantee loans, provide additional loans, and make direct capital injections into troubled financial institutions.

 

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Black and White or Red All Over? The Impropriety of Using Crime Scene DNA to Construct Racial Profiles of Suspects – Note by Natalie Quan

From Volume 84, Number 6 (September 2011)
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When the body of a deceased woman was found near the Mississippi River close to Baton Rouge in July 2002, DNA retrieved from the crime scene was linked to the murders of two other women in the area, and multiple law enforcement agencies subsequently began an aggressive search for the serial killer. Using witness statements and an FBI profile, the FBI, the Louisiana State Police, and the police and sheriff’s departments of Baton Rouge determined that their suspect was a young white man. After a fourth murder believed to have been committed by the same perpetrator occurred in December 2002, officials intensified their hunt for the killer by spending over one million dollars to collect and test the DNA of some 1200 white men in the area, but they made no matches and consequently had no leads.

In March 2003, the investigators crossed paths with molecular biologist Tony Frudakis of the company DNAPrint Genomics, who claimed that he could ascertain the suspect’s social race by testing the crime scene DNA for 176 specific genetic markers that disclose information about physical traits. Frudakis said that because certain markers are found predominantly in people of African, Indo-European, Native American, or South Asian roots, he could analyze their frequencies and predict the suspect’s ancestry with 99 percent accuracy, and then infer social race from this ancestry finding. Initially skeptical of the science, officials sent Frudakis DNA samples from twenty individuals with known racial designations—and upon blind testing the samples, Frudakis correctly identified the race of each individual.

Even more intriguing were the results of Frudakis’s analysis of the Baton Rouge serial killer’s DNA. Using a test he called DNAWitness, Frudakis concluded that the suspect’s “biogeographical ancestry” was 85 percent Sub-Saharan African and 15 percent Native American, which left, in his words, “no chance that this is a Caucasian. No chance at all.”

 

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The Nanotechnology Patent Thicket and the Path to Commercialization – Note by Amit Makker

From Volume 84, Number 5 (July 2011)
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If even a portion of the rumors surrounding nanotechnology are true, the products and processes brought to market will have the ability to change and advance numerous industries well beyond their current levels. As developers in nanotechnology continue to innovate, they are patenting their discoveries at an ever increasing rate. Nanotechnology represents a new challenge for patent law, and these early patents, if not monitored closely, could effectively lead nanotechnology to a frozen state of development and commercialization before society has had a chance to reap the benefits of this new technology in the form of commercial products and medicinal advances. This Note explores the intellectual property issues surrounding nanotechnology and the societal repercussions of, and possible responses to, the extensive early patenting in this area.

 

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