Cornell Law Review最新文献

{"title":"Dirty dancing--the FDA stumbles with the Chevron two-step: a response to professor Noah.","authors":"Gary Lawson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"927-38"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Losing deference in the FDA's second century: judicial review, politics, and a diminished legacy of expertise.","authors":"James T O'Reilly","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"939-80"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Drug review \"behind the curtain\": a response to Professor Struve.","authors":"James T O'Reilly","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"1075-90"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Food, drugs, and droods: a historical consideration of definitions and categories in American food and drug law.","authors":"Lewis A Grossman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article explores the evolution and interaction of the legal and cultural categories \"food\" and \"drug\" from the late nineteenth century to the present. The federal statutory definitions of \"food\" and \"drug\" have always been ambiguous and plastic, providing the FDA with significant regulatory flexibility. Nevertheless, the agency is not necessarily free to interpret the definitions however it chooses. \"Food\" and \"drug\" are not only product classes defined by food and drug law, but also fundamental cultural concepts. This Article demonstrates that the FDA, as well as Congress and the courts, have operated within a constraining cultural matrix that has limited their freedom to impose their preferred understandings of these categories on American society. Nonetheless, history also provides ample evidence that lawmakers possess substantial power to mold the legal categories of \"food\" and \"drug\" so as to advance desired policies. One explanation for this regulatory flexibility in the face of deep-seated cultural conceptions is the indeterminate nature of the extralegal notions of \"food\" and \"drug.\" The terms, as commonly understood, embrace nebulous, overlapping, and constantly evolving realms. Moreover, the relationship between culture and law is not a one-way street with respect to these categories. Although the regulatory apparatus has always had to take into account the extralegal understandings of \"food\" and \"drug,\" the law in turn has exerted significant influence over their meaning in broader culture.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"1091-148"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27529275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The little agency that could (act with indifference to constitutional and statutory strictures).","authors":"Lars Noah","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"901-26"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"FDA regulatory compliance reconsidered.","authors":"Carl Tobias","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"1003-38"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Greater and lesser powers of tort reform: the primary jurisdiction doctrine and state-law claims concerning FDA-approved products.","authors":"Catherine T Struve","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"1039-74"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The FDA and deference lost: a self-inflicted wound or the product of a wounded agency? A response to Professor O'Reilly.","authors":"David C Vladeck","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 5","pages":"981-1002"},"PeriodicalIF":2.5,"publicationDate":"2008-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27527769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"It's a wonderful life: is it possible to say that a severely disabled child has been harmed by the mere fact of being born?","authors":"Ronen Perry","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>\"It's a Wonderful Life,\" the title of Frank Capra's classic 1946 movie, seems to encapsulate a fundamental all-American conviction. Unsurprisingly, several courts and jurists have applied the movie-title maxim as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants answer in the affirmative, whereas Capra's aphorism makes a compelling counter-argument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths, so neither may ever prevail. Without a satisfactory solution from conventional wisdom, the life-as-injury debate may be the Gordian knot of tort law. The purpose of this Article is to cut, rather than untie, the knot: Allow the child to recover without challenging or validating the deep-seated perception of life. Part I shows that hostility to liability in tort for wrongful life is almost universal, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability--both logical and practical--to establish \"harm\" under the traditional definition of this term. Part III opines that because the Gordian knot of tort law cannot be untied, it must be cut altogether. We must replace the traditional tort framework, which gives rise to an insoluble problem, with a more promising contractual framework inspired by the celebrated case of Hawkins v. McGee. In my view, the child may base an action on the claim that the defendant promised the parents that the child would be born without a certain defect and that the promise went unfulfilled. In formal terms, the child is an intended third party beneficiary of the contract between the parents and the consultant in which the latter warranted birth without a particular disability. The warranty of the future child's physical integrity and health, an integral and inseparable part of the contract, should form the basis of the child's cause of action.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"93 2","pages":"329-400"},"PeriodicalIF":2.5,"publicationDate":"2007-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27333452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and On Trial Outcomes","authors":"T. Eisenberg, V. Hans","doi":"10.2139/SSRN.998529","DOIUrl":"https://doi.org/10.2139/SSRN.998529","url":null,"abstract":"This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for evidentiary strength and other factors, statistically significant associations exist (1) between the existence of a criminal record and the decision to testify at trial, (2) between the defendant testifying at trial and the jury learning about the defendant's prior record, and (3) in cases with weak evidence, between the jury learning of a criminal record and conviction. For cases with strong evidence against defendants, learning of criminal records is not strongly associated with conviction rates. Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction. Use of prior record evidence may therefore lead to erroneous convictions. Prosecutors and judges should consider the increased likelihood of erroneous conviction based on use of prior convictions in decisions to prosecute and in evidentiary rulings.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"94 1","pages":"1353"},"PeriodicalIF":2.5,"publicationDate":"2007-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67936580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}