Does the FDA Have Authority to Regulate Human Cloning?

Examines the FDA\u27s statutory authority to regulate human cloning

The Evolution of Health Care Decision Making: The Political Paradigm and Beyond

The ascendancy of the political paradigm as the primary mode of health care decision-making is a natural evolutionary reaction to the unrestrained market paradigm. Although a certain of political intrusion into the health care marketplace is both necessary and useful, it has the potential to unravel the efficiencies achieved by managed care. Overzealous intervention in the health care market in the name of reform may cause the health care decision-making pendulum to swing back to the provider paradigm, with its tendency to escalate health care costs and diminish access. One possible way to achieve decision-making equilibrium and and end the cycling of extremist mono-paradigmatic dominance is to inject into the provider-patient-payer triad a neutral third party, a fiduciary whose duty is to guard the best interests of the patient, to stand as an informed agent between the financially self interested provider and payer

Torts-- Federal Preemption of State Common Law-- Federal Cigarette Labeling & Advertising Act

This case note examining Supreme Court\u27s landmark preemption decision in Cipollone v. Liggett Group

Teaching the Elephant to Dance: Privatizing the FDA Review Process

Considers the implications of privatizing the Food and Drug Administration\u27s (FDA) review of the safety and efficacy of medical devices and drugs. Concludes that the FDA\u27s flaws - namely, a risk avoidance culture and autocratic style of regulation - can only be accomplished by breaking the agency\u27s monopolization of this review function

Toward a Unified Theory of Products Liability: Reviving the Causative Concept of Legal Fault

This paper explores the concept of causative fault – with an emphasis on proximate and actual cause – as a substitute for modern strict liability

Constitutional Fidelity and the Commerce Clause: A Reply to Professor Ackerman

Can the Constitution be legitimately, albeit implicitly, amended by the Supreme Court? The possibility of implicit constitutional amendment - most forcefully advocated by Professor Bruce Ackerman as transformative Supreme Court decisions - has been articulated to justify, legitimate, and entrench various radical reinterpretations of the Constitution, most notably the New Deal Court\u27s vast expansion of the power to regulate commerce. The article concludes that such implicit constitutional amendments are theoretically illegitimate and provide strong disincentives for We the People to become politically active in order to correct flaws in the original Constitution or interpretations thereof that are deemed no longer normatively desirable. They bypass the process of amendment provided for in Article V and encourage popular political lethargy and judicial paternalism

Judicial Engagement, Written Constitutions, and the Value of Preservation: The Case of Individual Rights

When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for judges to enforce the written constitution, even when doing so may strike the judge as pragmatically difficult, politically unpalatable, or even morally wrong. A judge who is properly engaged, in other words, is a judge who views her job as one of enforcing and preserving the written Constitution. This Article will explore the difference between judicial activism and judicial engagement by examining the Supreme Court’s evolutionary approach to individual rights. I hope to convince the reader that judges have strayed too far from the Constitution’s original meaning in the realm of individual rights, engaging in judicial activism rather than appropriate judicial engagement. Following this analysis, I will offer a plausible and familiar solution to the problem of activism — a blueprint, if you will, for getting our judges properly engaged in enforcing our written Constitution

Bias, Corruption & Obstruction, Oh My: The Due Process Shocks the Conscience Limit on Investigative & Prosecutorial Conduct

Due process guarantees the government will not exercise its power in a manner falling below the standard of civilized decency. Under Supreme Court precedent, behavior by government officials, including prosecutors and investigators, that objectively may be characterized as outrageous, arbitrary, capricious, biased, vindictive, or conscience shocking violates due process. Whether officials’ behavior crosses the constitutional threshold requires an assessment of the totality of the circumstances and is, accordingly, a factually sensitive inquiry. Facts disinterred thus far suggest that the “collusion” narrative—alleging that Russia and Donald Trump’s campaign colluded to throw the 2016 presidential election—may have a corrupt or politically biased genesis. As the facts continue to unfold, the depth and breadth of bias against Trump by Executive Branch officials, including those at the FBI and DOJ, may well rise to conscience shocking levels. The taint of antecedent corruption or bias, in turn, could infect the prosecutorial effort of Special Counsel Robert Mueller