Cornell Journal of Law and Public Policy最新文献

{"title":"Large-sized soda ban as an alternative to soda tax.","authors":"Hery Michelle Min","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Note examines New York City's Sugary Drinks Portion Cap Rule (Soda Ban), which was originally set to become effective March 12, 2013. The New York County Supreme Court's decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene suspended the Soda Ban on March 11, 2013. The First Department of the Appellate Division of New York State Supreme Court affirmed the suspension on July 30, 2013. However, the complex economic policy and constitutional issues arising from the proposed Soda Ban deserve as much attention as the ultimate result of the legal challenge to the ban. Both courts struck down the Soda Ban on the grounds that it violated the separation of powers doctrine. The lower court further held that the Soda Ban was arbitrary and capricious. This Note does not focus solely on the holdings of the two courts, but takes a broader approach in analyzing the issues involved in the Soda Ban. By comparing and contrasting tobacco products with sugary beverages, this Note explains why the public seems to find the Soda Ban less appealing than tobacco regulations. Specifically, this Note addresses how the failed attempts of numerous states and cities to implement soda taxes demonstrate the complexity of policies geared toward curbing obesity; how fundamental values, such as health, fairness, efficiency, and autonomy factor into obesity policies; and the fact that legislatures and courts are struggling to determine the scope of public health law intervention. The Note explores how the Soda Ban, despite its judicial suspension, could represent a stepping-stone in combating the obesity epidemic.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"23 1","pages":"187-232"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Snake oil salesmen or purveyors of knowledge: off-label promotions and the commercial speech doctrine.","authors":"Constance E Bagley,&nbsp;Joshua Mitts,&nbsp;Richard J Tinsley","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Second Circuit's December 2012 decision in United States v. Caronia striking down the prohibition on off-label marketing of pharmaceutical drugs has profound implications for economic regulation in general, calling into question the constitutionality of restrictions on the offer and sale of securities under the Securities Act of 1933, the solicitation of shareholder proxies and periodic reporting under the Securities Exchange Act of 1934, mandatory labels on food, tobacco, and pesticides, and a wide range of privacy protections. In this Article we suggest that Caronia misconstrues the Supreme Court's holding in Sorrell v. IMS Health, which was motivated by concerns of favoring one industry participant over another rather than a desire to return to the anti-regulator fervor of the Lochner era. Reexamining the theoretical justification for limiting truthful commercial speech shows that a more nuanced approach to regulating off-label marketing with the purpose of promoting public health and safety would pass constitutional muster. We argue that as long as the government both has a rational basis for subjecting a particular industry to limits on commercial speech intended to further a legitimate public interest, rather than unfounded paternalism, and does not discriminate against disfavored industry participants, those limits should be subject to intermediate scrutiny under the Central Hudson standard. We believe that our articulation of the commercial speech doctrine post-Sorrell will help resolve the current split in the Circuits on the appropriate standard of review in cases involving both restrictions on commercial speech and mandated speech. Finally, we critique the FDA's 2011 Guidance for Responding to Unsolicited Requests for Off- Label Information (draft) and present a proposal for new rules for regulating the off-label marketing of pharmaceutical drugs based on transparency, the sophistication of the listener and the type of information offered, and the requirement that the pharmaceutical company comply with ongoing duties of training, monitoring, reporting, and auditing.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"23 2","pages":"337-93"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cooperative federalism and hydraulic fracturing: a human right to a clean environment.","authors":"E. Burleson","doi":"10.2139/SSRN.2007234","DOIUrl":"https://doi.org/10.2139/SSRN.2007234","url":null,"abstract":"This Article argues that filling the energy governance gaps regarding unconventional natural gas can best be accomplished through collaborative governance that is genuinely adaptive and cooperative. Through cooperative federalism, combined with procedural rights for inclusive, innovative decision-making, state and non-state actors should design and implement the requisite safeguards before further natural gas development advances. Hydraulic fracturing provisions are strikingly fragmented and have sparked a fierce debate about chemical disclosure, radioactive wastewater disposal, and greenhouse gas emissions. United States natural gas production may stunt the direction and intensity of renewable energy by up to two decades and will not provide a bridge to a sound energy policy if it \"erode[s] efforts to prepare a landing at the other end of the bridge.\" Unconventional natural gas extraction need not become a transition to a new addiction. This Article analyzes how cooperative federalism and inclusive decision-making can provide legitimacy and transparency when balancing property rights against police powers to regulate natural gas production.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"22 2 1","pages":"289-348"},"PeriodicalIF":0.0,"publicationDate":"2012-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cooperation and Division: An Empirical Analysis of Voting Similarities and Differences During the Stable Rehnquist Court Era — 1994 to 2005","authors":"Mark S. Klock","doi":"10.2139/SSRN.1986402","DOIUrl":"https://doi.org/10.2139/SSRN.1986402","url":null,"abstract":"The Stable Rehnquist Court Era (SRCE) covers the period from the appointment of Justice Breyer to the passing of Chief Justice Rehnquist. There has been only one longer period of stability in the Court’s history, and that was in the early nineteenth century when far fewer cases were decided. Because the composition of the Court held constant for so long, the SRCE presents a unique opportunity to conduct a statistical analysis of the Justices’ votes. I present a statistical empirical analysis of voting for this period, both for the potentially interesting results and as an example of how to conduct and present an empirical study which is objective and replicable. Some of the findings include the following: only a few pairs of Justices have statistically significant differences in voting records; the magnitude of the departure from independent voting is enormous in statistical terms; Justice Thomas is the most predictable Justice; and Justice Scalia is the least-changed Justice. Of particular interest is a finding that is contrary to conventional wisdom. Conventional wisdom suggests that the median Justice closest to the center, presumably Justice Kennedy, is the most influential Justice. However, I have developed a measure of influence which employs the statistically significant effects the Justices have on each other, and this suggests that the most influential Justices on the Court during the SRCE were Rehnquist, Souter, and Breyer.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"22 1","pages":"537-588"},"PeriodicalIF":0.0,"publicationDate":"2012-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1986402","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67831559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cooperative federalism and hydraulic fracturing: a human right to a clean environment.","authors":"Elizabeth Burleson","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article argues that filling the energy governance gaps regarding unconventional natural gas can best be accomplished through collaborative governance that is genuinely adaptive and cooperative. Through cooperative federalism, combined with procedural rights for inclusive, innovative decision-making, state and non-state actors should design and implement the requisite safeguards before further natural gas development advances. Hydraulic fracturing provisions are strikingly fragmented and have sparked a fierce debate about chemical disclosure, radioactive wastewater disposal, and greenhouse gas emissions. United States natural gas production may stunt the direction and intensity of renewable energy by up to two decades and will not provide a bridge to a sound energy policy if it \"erode[s] efforts to prepare a landing at the other end of the bridge.\" Unconventional natural gas extraction need not become a transition to a new addiction. This Article analyzes how cooperative federalism and inclusive decision-making can provide legitimacy and transparency when balancing property rights against police powers to regulate natural gas production.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"22 2","pages":"289-348"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Documenting death: public access to government death records and attendant privacy concerns.","authors":"Jeffrey R Boles","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article examines the contentious relationship between public rights to access government-held death records and privacy rights concerning the deceased, whose personal information is contained in those same records. This right of access dispute implicates core democratic principles and public policy interests. Open access to death records, such as death certificates and autopsy reports, serves the public interest by shedding light on government agency performance, uncovering potential government wrongdoing, providing data on public health trends, and aiding those investigating family history, for instance. Families of the deceased have challenged the release of these records on privacy grounds, as the records may contain sensitive and embarrassing information about the deceased. Legislatures and the courts addressing this dispute have collectively struggled to reconcile the competing open access and privacy principles. The Article demonstrates how a substantial portion of the resulting law in this area is haphazardly formed, significantly overbroad, and loaded with unintended consequences. The Article offers legal reforms to bring consistency and coherence to this currently disordered area of jurisprudence.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"22 2","pages":"237-88"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Welcome to the wild west: protecting access to cross border fertility care in the United States.","authors":"Kimberley M Mutcherson","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>As has been the case with other types of medical tourism, the phenomenon of cross border fertility care (\"CBFC\") has sparked concern about the lack of global or even national harmonization in the regulation of the fertility industry. The diversity of laws around the globe leads would-be parents to forum shop for a welcoming place to make babies. Focusing specifically on the phenomenon of travel to the United States, this Article takes up the question of whether there should be any legal barriers to those who come to the United States seeking CBFC. In part, CBFC suffers from the same general concerns raised about the use of fertility treatment in general, but it is possible to imagine a subset of arguments that would lead to forbidding or at least discouraging people from coming to the United States for CBFC, either as a matter of law or policy. This paper stands in opposition to any such effort and contemplates the moral and ethical concerns about CBFC and how, and if, those concerns warrant expression in law. Part I describes the conditions that lead some couples and individuals to leave their home countries to access fertility treatments abroad and details why the United States, with its comparatively liberal regulation of ART, has become a popular CBFC destination for travelers from around the world. Part II offers and refutes arguments supporting greater domestic control over those who seek to satisfy their desires for CBFC in the United States by reasserting the importance of the right of procreation while also noting appropriate concerns about justice and equality in the market for babies. Part III continues the exploration of justice by investigating the question of international cooperation in legislating against perceived wrongs. This Part concludes that consistent legislation across borders is appropriate where there is consensus about the wrong of an act, but it is unnecessary and inappropriate where there remain cultural conflicts about certain practices—in this case assisted reproduction.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"22 2","pages":"349-393."},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Torture, Impunity, and the Need for Independent Prosecutorial Oversight of the Executive Branch","authors":"F. Quigley","doi":"10.31228/osf.io/v3rb5","DOIUrl":"https://doi.org/10.31228/osf.io/v3rb5","url":null,"abstract":"Allegations of Executive Branch misconduct present an inherent conflict of interest because prosecutorial discretion is invested in a U.S. Attorney General appointed by – and serving at the pleasure of – the President. Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute have posited that checks on executive power provided by the Legislative Branch, the Judiciary, and political pressure will overcome any potential conflicts of interest. This sanguine view of adequate Executive Branch oversight was put to the test when high-level members of the George W. Bush Administration authorized acts of torture. After widespread public disapproval, Congress and the courts responded with efforts to rein in the Administration’s actions. However, the Department of Justice under the Bush Administration not only refused to investigate and prosecute allegations of sanctioning torture, but its attorneys also led the efforts to overcome congressional, judicial, and popular resistance to the Executive Branch conduct – and did so while explicitly acknowledging that the Executive Branch could expect little or no judicial oversight for its actions. Ultimately, the President who sanctioned torture left office, and the voters elected a President who expressed sharply different views on torture. However, the subsequent Administration of President Barack Obama, although affiliated with a different party and on record as opposed to acts of torture sponsored by the previous Administration, has also declined to pursue prosecution of high-level members of the Bush Administration. This most recent development shows that the conflict of interest presented by presidential control over Executive Branch prosecution transcends predictable concerns of self-preservation. The conflict of interest also highlights the natural desire of a sitting President to avoid prosecutions of previous executive officials when such prosecutions would consume political capital needed for the President’s broader legislative and foreign policy agendas. When it comes to controlling Executive Branch criminal conduct, the current structure designed to provide checks and balances comes up empty and thus must be reformed. The most direct and effective reform would be the direct election of the U.S. Attorney General. Even less precise remedies, such as a revived and improved independent counsel or Congress enacting provisions to break up the current monopoly over Executive Branch prosecution, would be significant improvements over the current system, which mocks the principle of equal justice for all.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"20 1","pages":"271"},"PeriodicalIF":0.0,"publicationDate":"2011-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hormone therapy for inmates: a metonym for transgender rights.","authors":"Silpa Maruri","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The issue of hormone therapy for transgender inmates, while seemingly limited in importance, is one that involves issues of greater importance for the transgender community. The greatest issue at the heart of the matter is the legal argument that is traditionally used to gain access to hormone therapy: the Eighth Amendment. The Eighth Amendment prohibits deliberate indifference to the medical needs of inmates. Traditionally, transgender inmates have gained access to hormone therapy by appealing to the DSM-IV's classification of Gender Identity Disorder (GID) as a mental illness, and by establishing that prison officials' failure to provide hormone therapy constitutes deliberate indifference to a serious medical need. However, appeal to GID is a double-edged sword: while it allows access to hormone therapy, it does so by describing transgender individuals as somehow sick or infirm. This description is at odds with the transgender community's conceptualization of itself. This Note seeks to square the legal arguments for provision of hormone therapy to transgender inmates with the philosophical backdrop that shapes the transgender rights movement by using Plyler v. Doe as a model. This Note argues that access to hormone therapy by transgender inmates involves the intersection of a quasi-fundamental right with a quasi-suspect class. By utilizing such an argument, the transgender community is not bound by the negative expressive effect that the law may have in describing it as infirm or deficient.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"20 3","pages":"807-32"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Refractory pain, existential suffering, and palliative care: releasing an unbearable lightness of being.","authors":"George P Smith","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Since the beginning of the hospice movement in 1967, \"total pain management\" has been the declared goal of hospice care. Palliating the whole person's physical, psychosocial, and spiritual states or conditions is central to managing the pain that induces suffering. At the end-stage of life, an inextricable component of the ethics of adjusted care requires recognition of a fundamental right to avoid cruel and unusual suffering from terminal illness. This Article urges wider consideration and use of terminal sedation, or sedation until death, as an efficacious palliative treatment and as a reasonable medical procedure in order to safeguard the \"right\" to a dignified death. Once the state establishes a human right to avoid refractory pain of whatever nature in end-stage illness, a coordinate responsibility must be assumed by health care providers to make medical judgments consistent with preserving the best interests of a patient's quality of life by alleviating suffering. The principle of medical futility is the preferred construct for implementing this professional responsibility. Rather than continue to be mired in the vexatious quagmire of the doctrine of double effect--all in an effort to \"test\" whether end-stage decisions by health care providers are licit or illicit--a relatively simple test of proportionality, or cost-benefit analysis, is proffered. Imbedded, necessarily, in this equation is the humane virtue of compassion, charity, mercy or agape. Assertions of state interest in safeguarding public morality by restricting intimate associational freedoms to accelerate death in a terminal illness are suspicious, if, indeed, not invalid. No terminally ill individual suffering from either intractable somatic or non-somatic pain, or both, should be forced to continue living.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"20 3","pages":"469-532"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}