Suchergebnisse

Forward to the 2012 Allen Chair Symposium issue, focused on the litigation challenges to the Patient Protection and Affordable Care Act ("ACA").

This chapter will explore the range of laws and government policies that have shaped the physical structure of U.S. cities and thereby impacted the health of those cities' residents. This analysis will highlight the many, apparently "private" decisions that have been impacted by government policies. Though some of the laws, policies, prohibitions, and incentives have been formulated explicitly to take into account health considerations, others have unintended effects - both good and bad - on the health of urban populations.

Cardiovascular diseases are major contributors to death, disability, disparities, and reduced quality of life in the United States. Successful prevention and control of these diseases requires a comprehensive approach applied across multiple public health settings and in all life stages. Individual lifestyle and behavior change, as well as the broader social, environmental, and policy changes that enable healthy lifestyles, are necessary. Legal strategies can be powerful tools in this endeavor. This review presents seven such strategies applicable at the federal, state, and local levels that can be employed by healthcare providers, public health practitioners, legislators, and other policymakers. They include direct regulation, economic incentives and disincentives, indirect regulation through private enforcement, government as information provider, government as direct provider of services, government as employer and landlord, and laws directed at other levels of government. These strategies may be accomplished through legislation or administrative changes in practices or procedures. Effective use of these strategies requires a broader understanding of the advantages and limitations of legal frameworks and the importance of tailoring strategies to local conditions and resources. Examples of key roles that health professionals can play in advancing such an understanding are presented.

Law is a tool that can be used to shape both private and government conduct so as to impact public health. There are at least seven different techniques of legal intervention, each of which has advantages and disadvantages. These techniques are: direct regulation through command and coercion; economic incentives to encourage private parties to behave in a particular way; indirect regulation through private enforcement such as tort law; altering the informational environment; directly providing services or infrastructure to the public; government acting as a "model citizen" with respect to its employees and facilities; and, inducing other levels of government to take appropriate steps.

The international community has been struggling with questions of who should regulate the Internet and how, but little consensus has emerged. For the United States, consideration of the pros and cons of the alternative jurisdictional approaches to e-commerce and cyberspace is complicated by an overlay of constitutional law. While the rest of the world considers the policy implications of a country of origin versus a country of destination approach, the United States is wrestling with what constitutes "purposeful availment" under the Due Process Clause. The Supreme Court has never squarely considered what limits the Fifth Amendment imposes on assertions of personal jurisdiction in federal court. Commentators have, for the most part, assumed that the limits imposed by the Fifth Amendment are comparable to those imposed on the states by the Fourteenth Amendment. This Article examines that assumption and concludes that the limits imposed by the Fifth Amendment are not comparable to those imposed by the Fourteenth. Specifically, it argues that the Fifth Amendment should not be understood to include the requirement of purposeful availment8 and that jurisdiction should be constitutional on the basis of effects in the United States. This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level.

Professor Perdue describes her use of materials on Indian Tribes at the end of her Conflict of Laws course as a vehicle for examining the interrelations among choice of law, Jurisdiction, and recognition of judgments. Her goal is not to make students experts in Indian law, but rather to get students to reexamine assumptions about the nature of sovereignty and the role of choice of law, jurisdiction, and recognition of judgments as devices for recognizing and allocating governmental authority

In 1980 in World-Wide Volkswagen v. Woodson, the Supreme Court described personal jurisdiction as "an instrument of interstate federalism." Two years later in Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee, the Court back-pedaled and explained that personal jurisdiction "represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Then, in 1985 in Phillips Petroleum v. Shutts, the Court explained that the purpose of personal jurisdiction is "to protect a defendant from the travail of defending in a distant forum." Three years later in Van Cauwenberghe v. Biard, the Court stated that personal jurisdiction does not entail a right to be protected from the burdens of trial, but entails only a right not to be "subject to the binding judgments" of particular places. The Court's struggle in the area of personal jurisdiction has reached the point that the Court is now having difficulty generating majority opinions. The reason for the Court's difficulty in this area appears to be that personal jurisdiction is really a solution in search of a problem. Although the Court has thought "the problem" to be sufficiently important to warrant its hearing thirteen personal jurisdiction cases in the past fourteen years, it has never explicitly defined the problem. To use the metaphor of Ludwig Wittgenstein, the Court seems to assume that we all know the characteristics of the beetle in the box of personal jurisdiction. Yet, because the Court has never actually described the "beetle," it seems subject to infinite change. This article analyzes and criticizes the two problems supposedly solved by personal jurisdiction. Section I describes the problem of political legitimacy and Section II examines a commerce clause analogy as another justification for constitutional limits on state adjudicatory authority. Section III then examines several alternative problems for which personal jurisdiction may be the solution. These problems are practical ones and reflect the premise that personal jurisdiction may be nothing more than what actual litigants have always thought it was, namely, a doctrine to limit a plaintiff's choices of possible fora.

Historically, one of the most common charges raised against the futures market has been that of market manipulation. It would seem that whenever the public perceives prices as being too high or too low, someone will allege that the price is the result of manipulation. Despite the ease and frequency with which critics have leveled such charges and the fact that federal law has prohibited "manipulation" for over 65 years, a satisfactory definition of manipulation has yet to emerge. This Article offers a fresh approach to defining manipulation. Rather than asking a court to determine whether a price is "artificial" or "unreasonable," the proposed definition focuses on whether the conduct of the people involved is reasonable. More precisely, this Article defines manipulation as conduct that would be uneconomical or irrational, absent an effect on market price. Part I of this Article briefly describes by way of background the operation and purpose of the commodity futures market, and Part II analyzes the legislative history of federal commodity trading laws. Part III describes and analyzes past approaches to defining manipulation that have proven inadequate. Part IV first critiques the various views regarding the purpose underlying the manipulation prohibition and then introduces an alternative view. Based on this view, this Article then proposes a definition of manipulation that focuses on the trader's conduct rather than on the resulting price and demonstrates how this definition can be used to identify common types of manipulation. The Article concludes that this new definition will prove more workable and thus will lead to more accurate identification of manipulative conduct in the commodity futures market than is possible using currently accepted definitions.

In 2000, the Center for Disease Control and Prevention's National Center for Environmental Health issued a report that explored some of the ways in which "sprawl" impacts public health. The report has generated great interest, and state health officials are beginning to discuss the relationship between land use and public health. The CDC report has also produced a backlash. For example, the Southern California Building Industry Association labeled the report "a ludicrous sham" and argued that the CDC should stick to "fighting physical diseases, not defending political ones." In this environment, it is understandable if the CDC looks to such critiques as simply the latest partisan recruit to a political debate. But critics of the CDC's efforts in this area may substantially overstate their case in the other direction. There is now and has long been a demonstrated connection between health, including "physical disease," and the built environment. Moreover, government has intervened in the past in response to this connection and it continues to do so. While neither past practice nor current evidence make government intervention inevitable, this paper argues that such intervention is appropriate and supported by theory as well as history and empirical evidence.