Message Deleted? Resolving Physician-Patient E-mail through Contract Law

This article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascent form of communication. Significantly, courts have yet to indicate when the physician-patient relationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waiting for judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondence as a valuable means of communication, and a tool for improving the quality of health care as well

Dietary Supplement Labeling: Cognitive Biases, Market Manipulation & Consumer Choice

There exists increasing concern that the Dietary Supplements Health and Education Act (DSHEA) has proven ineffective. Much of the concern regards the disparity in legislative treatment between dietary supplements, foods, and pharmaceutical drugs. Namely, while pharmaceutical drugs must undergo years of costly pre-market testing, most supplements, like foods, can immediately enter the market, and only after repeated instances of adverse reactions can the Food and Drug Administration (FDA) remove them. Such a framework appears to belie both consumer expectations and marketing strategies, as supplements tend to be most perceived for their apparent medicinal qualities. This philosophy of waiting for a foreseeable harm also strikes many as unnecessary, inefficient, and immoral. On the other hand, most supplements have proven safe and either benign or reasonably effective. Moreover, before policy-makers mandate extensive pre-market testing of all supplements, consider the likely effect on production: a certain percentage of supplement makers will find the economics of production too costly and will thus leave the market. Granted, foreign markets for supplements might still provide the requisite incentives for production, but a more costly entrance fee into the U.S. market would clearly deter some level of production and convince a number of makers to leave the market altogether. Equally troubling, companies which choose to remain in the market would presumably pass on a portion of the increased costs to consumers, who often bear the costs of heightened regulation. Consequently, many beneficial supplements would be priced out of the reach of consumers who either have become users of those products or could become users. The issue then is one of nuance. Rather than sweeping regulatory intervention, perhaps more carefully-tailored alterations would prove most desirable. This philosophy appears desirable given informational deficiencies among dietary supplement consumers, particularly those with exploitable cognitive biases. Promisingly, such deficiencies may be ameliorated through low-cost measures that promote enhanced communication of product characteristics. For these reasons, this Article proposes a refined approach to dietary supplement labeling that would legally distinguish them on the basis of potential risk and anticipated benefit. Indeed, the existing legal construct of the phrase dietary supplements is both curious and overly simplistic. It includes minerals, vitamins, herbs, botanical extracts, and amino acids - items that are not only functionally different, but which present radically different risks and benefits. Along those lines, the very consumers of supplements should be more carefully distinguished. How might such a revised communicatory model work without precipitating material price increases or deterring beneficial production? One method would entail more carefully-contemplated labeling requirements. Such requirements should enhance consumer risk-assessment and reward reputable supplement manufacturers. To accomplish these goals, labels should reveal potential interactions with pharmaceutical drugs and other supplements, warnings of over-usage, predictable distinctions between health claims and structure/function claims, and a recommended intake range based on age and gender, among other personal characteristics. Of similar benefit would be assured ingredient content, as well as greater coordination between the FDA and the Federal Trade Commission (FTC) in regulating false or misleading supplement claims. Importantly, because such labeling requirements would impose only minimal cost increases to manufacturers

A Vote Cast; A Vote Counted: Quantifying Voting Rights through Proportional Representation in Congressional Elections

The current winner-take-all or first-past-the-post system of voting promotes an inefficient market where votes are often wasted. In this system, representatives are selected from a single district in which the candidate with the plurality of votes gains victory. Candidates who appear non-generic can rarely, if ever, expect to receive the most votes in this system. This phenomenon is especially apparent when African-Americans and other minority groups seek elected office. In part because white voters constitute at least a plurality of voters in every state except Hawaii, minorities in the forty-nine other states have had historically little success in gaining election to the United States Senate. As a consequence, the only real opportunity for minorities to gain access to federal elected office remains limited to the United States House of Representatives. The flaws of the winner-take-all-system and single member district are readily apparent. First, significant blocs of voters are consistently denied the right to elect a truly preferred candidate, because such candidates can almost never expect to receive the most votes. Consequently, many potential candidates are deterred from running because the prospect for victory is so slim. As a result, large numbers of voters are often forced to select the candidate they believe has the greatest chance of winning, rather than their preferred candidate. In addition, many voters in a winner-take-all system are represented by persons they did not support. For instance, in 1994, while Democratic candidates for Iowa\u27s five seats in the United States House of Representatives received 42% of the total votes cast in Iowa, none of Iowa\u27s five congressional seats was won by a Democrat. Similarly, in 1992, Republican congressional candidates garnered 48% of the two-party statewide vote in North Carolina, but won only four of twelve seats. Thus, many losing votes may be considered wasted. Wasted votes may also include those cast for the victorious candidate: any vote cast in addition to the number needed for victory might as well have never been cast. Thus, in landslide races, where the prospect of wasting one\u27s vote is high, the incentive to vote seems almost non-existent. Since over 75 percent of congressional races in any given election tend to be landslide races, many eligible voters do not vote. This Article considers an alternative system of voting: proportional representation, of which there are two basic forms, List System and Choice Voting/Single Transferable Vote. In the list system, a voter simply selects one party and its slate of candidates. Thereafter, the seats are allocated on the basis of the share of votes each party earned. For instance, in the Iowa congressional example discussed above, instead of receiving zero congressional seats with 42% of the statewide vote, the state Democratic Party would have earned two seats out of the available five. Often, with the list system, a minimum share of votes (such as 5%) is required for a party to earn representation. Alternatively, in a choice voting system, a voter simply ranks candidates in order of preference (first choice, second choice, etc.). Once a voter\u27s first choice is elected or eliminated, the voter\u27s excess votes are transferred to subsequent preferred candidates until all the seats are filled. In either arrangement, proportional representation would diminish wasted votes, provide greater opportunities for minority groups to gain access to legislative positions, and offer greater incentive for eligible voters to vote. Though proportional representation risks the election of fringe groups (such as hate groups), a minimum bar of 5% to 7% would likely neutralize that possibility. All told, proportional representation appears to be an intriguing alternative to our present winner-take-all voting system

Do you Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Anxiety Disorder and Fear of Flying

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White\u27s conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness.This Article argues that White would likely fail in a lawsuit against an NBA team and the NBA under the Americans with Disabilities Act. Case law disfavors recognition of his conditions as workplace disabilities, and even if a court recognizes them as such, there appears to be no reasonable accommodation that doesn\u27t necessitate him flying. This Article also contends that if White cannot adequately resolve his health issues, it would be advisable for him -- and the NBA and Players\u27 Association -- to find creative resolutions. Such an approach would be far preferable to litigation. One such approach could be loaning White\u27s employment to another pro basketball league where all or almost all games are played within driving distance. In that circumstance, he could develop his game against talented pro basketball players and, hopefully, gradually overcome his health issues. The Israel Super Basketball League (Ligat Winner Sal) is one such league. During time in another league, White\u27s NBA employment rights could remain with an NBA team. This Article also insists the NBA and Players\u27 Association take mental health policies more seriously, especially as increasing rates of Americans are diagnosed with mental illness. For years, the NBA and Players\u27 Association have focused on physical health policies while largely ignoring mental health

The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy

This Article examines required genetic testing of NBA players from a situational vantage point, integrating socio-psychological, legal, and ethical analyses. The core argument may be expressed as follows: required genetic testing of NBA players appears consistent with a broader and largely deleterious agenda by the NBA to control players. Since implementation of the rookie wage scale in 1995 through the recent imposition of a paternalistic player dress code, the NBA has increasingly usurped player autonomy. The NBA\u27s capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of unappreciated cognitive biases, fans and media often embrace distorted views of player\u27s maturity, arrest propensity, and collegiate experiences. As a result, NBA players tend to be wrongly identified as immature, out-of-control, and hopelessly uneducated. In turn, the NBA has designed policies that ostensibly remedy these feigned problems while less-detectably transferring autonomy from player to league. In short, the league sees that others often fail to see, and that enables it to surreptitiously control players

Death of a 78-Year Old Woman

This official opinion of the District Attorney of Milwaukee County, E. Michael McCann, represents a synthesis of sound jurisprudence and sound medical-ethical reasoning in a difficult medical situation

The NBA and the Single Entity Defense: A Better Case?

This Article will explore the relationship between the National Basketball Association, its independently-owned teams, and associated corporate entities, including the Women’s NBA, NBA Properties, NBA Developmental League, NBA China, and single entity analysis under section 1 of the Sherman Act. Section 1 chiefly aims to prevent competitors from combining their economic power in ways that unduly impair competition or harm consumers, be it in terms of raised prices, diminished quality, or limited choices. Single entities are exempt from section 1 because they are considered “one,” rather than competitors, and thus their collaboration does not implicate anticompetitive concerns. In American Needle v. NFL, the Supreme Court will decide whether the National Football League, its teams, and associated corporate entities, constitute a single entity. Other leagues, including the NBA, may be impacted by the Court’s decision. If the NBA were a single entity, it could potentially execute exclusive contracts with video game companies and apparel companies, restrain players’ salaries and employment autonomy, and impose heightened age restrictions on amateur players who seek employment in the NBA, all without concern for section 1 scrutiny. In a recent feature in the Yale Law Journal, I discourage the Court from recognizing the NFL as a single entity but recommend that Congress consider targeted, sports league-related exemptions from section 1. In this Article, I survey whether the NBA’s globalized business agenda and the league’s exposure to competition from foreign professional basketball leagues necessitate that NBA teams act in unison and with a “shared consciousness.” The necessity of cooperation, at least for certain international endeavors, may distinguish NBA teams from teams in NFL, which remain more anchored to domestic operations. To the extent Congress considers legislative exemptions for professional sports leagues, the experience of the NBA, a trailblazer in promoting a league product abroad, may lend insight on how antitrust law should regulate leagues in the years ahead

Motives for Acquisitions in the UK

This paper investigates the motives for acquisitions in the UK. Standard event study methodology is inadequate to distinguish between different motives for acquisitions in any sample. Berkovitch and Narayanan (1993) propose a different methodology to distinguish between competing motives in any sample. This methodology analyses the relationship between the target gain and total gain to distinguish acquisitions driven by efficiency from those driven by agency motives. To differentiate managerial hubris from agency problems, the relationship between target gain and bidder gain is also analysed. The results show that efficiency is the primary motive for acquisitions exhibiting positive total gains. However, there is evidence of managerial hubris in the sample. In acquisitions were total gains are negative, agency problems are the primary motive.Acquisitions, event studies, efficiency, agency problems, managerial hubris.

Legality of Age Restrictions in the NBA and NFL

This essay examines age eligibility rules in the National Football League (NFL) and the National Basketball Association (NBA), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high school graduation. The same is true of those who enlist in the U.S. armed forces and in various occupations that require maturity and discipline. Such an employment landscape raises inquiry as to why NFL and NBA teams, unlike so many other employers, would agree to boycott any candidate, regardless of talent or skill, until a prescribed period after high school graduation. This inquiry enjoys heightened interest when considering that NFL and NBA teams are incomparable employers, as players may not play in other leagues for similar compensation