Wisconsin Law Review最新文献

{"title":"Federally funding human embryonic stem cell research: an administrative analysis.","authors":"G S Gross","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"4 ","pages":"855-84"},"PeriodicalIF":0.6,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22314354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection","authors":"D. Cole, P. Grossman","doi":"10.4324/9781315197296-7","DOIUrl":"https://doi.org/10.4324/9781315197296-7","url":null,"abstract":"Contrary to the conventional wisdom among economists and legal scholars, command-and-control (CAC) environmental regulations are not inherently inefficient or invariably less efficient than alternative \"economic\" instruments (EI). In fact, CAC regimes can be and have been efficient (producing net social benefits), even more efficient in some cases that alternative EI regimes. Standard economic accounts of CAC are insensitive to the historical, technological, and institutional contexts that can influence (and sometimes determine) the efficiency of alternative regulatory regimes. A regime that is nominally or relatively efficient in one set of circumstances may be nominally or relatively inefficient in another. In some cases, given the marginal costs of pollution control, technological constraints, and existing institutions, CAC can be the most efficient means of achieving a society's environmental protection goals. This paper reviews the empirical literature on environmental regulation and finds that CAC is not inherently inefficient or invariably less efficient that EI. In addition, the paper elaborates a model through five stylized cases, which demonstrate how alternative approaches to environmental regulation are more or less efficient depending on institutional and technological factors that affect overall regulatory costs. Finally, the model is empirically supported by a detailed history of the U.S. Clean Air Act's regulatory regime. Viewed as an evolutionary process, occurring within an institutional and technological framework, it was (nominally and relatively) efficient for Congress to rely, in the early years of federal air pollution control, on CAC regulations, and then in more recent years to begin experimenting with efficiency-enhancing EI.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"1 1","pages":"115-166"},"PeriodicalIF":0.6,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70636817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DNA patentability--anything but obvious.","authors":"J S Dillen","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The DNA-sequencing blitz, made possible in the early 1980s by improved genetic technology, has descended on the patent office in the form of thousands of patent applications for sequences. Controversy over the obviousness of certain sequences has led to a string of recent cases in the United States Court of Appeals for the Federal Circuit (CAFC). In each of three opinions, the court held that DNA sequences are non-obvious, and therefore patentable. Due to a mysterious aversion by the court to apply the standard analyses for obviousness, coupled with a lack of scientific prowess, the CAFC's decisions lack both legal and technical coherence. Also, due to the time lag between invention, application, and appeal, much of the judicial rationale has been based on a level of technology a decade old--primitive by today's standards. A careful application of the obviousness standard in light of today's technology demonstrates that obviousness may yet pose a threat to biotechnologists.</p>","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"5 ","pages":"1023-46"},"PeriodicalIF":0.6,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25740733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pushing the limits of informed consent: Johnson v. Kokemoor and physician-specific disclosure.","authors":"R A Heinemann","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"5 ","pages":"1079-121"},"PeriodicalIF":0.6,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25740732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Jones v. Gerhardstein: the involuntarily committed mental patient's right to refuse treatment with psychotropic drugs.","authors":"D M J Ledwith","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The question of whether an involuntary committed mental patient has a fundamental right to refuse treatment with psychotropic drugs continues to be a subject of much debate. Over the past twenty-five years, psychotropic drugs have become the most common form of treatment for the mentally ill. For many patients, these drugs provide substantial benefits; for others, however, they produce severe, sometimes debilitating, side effects. Because of the possibility of serious harm to the patient and because of the potential for abuse of drug treatment by psychiatric staffs, the mental health bar generally has argued for increased procedural protection for mental patients. In Jones v. Gerhardstein, the Wisconsin Supreme Court responded to these concerns by requiring that a judicial hearing be held on the issue of a patient's competency to refuse treatment before the attending physician may administer medication without the patient's consent. This Note discusses the controversy between the legal and medical communities over treatment refusal by mentally ill patients in light of the impact of the Jones decision on institutional practice and on refusing patients. The author argues that the strictly rights-based analysis used by the Jones court has done little to benefit involuntarily committed mental patients. The author suggests alternative ways of approaching treatment refusal that might be more responsive to the distinctive needs of the mentally ill.</p>","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"1990 5","pages":"1367-98"},"PeriodicalIF":0.6,"publicationDate":"1990-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25215527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Equalizing Remediation","authors":"Chinonso I. Anozie","doi":"10.59015/wlr.bhsb5188","DOIUrl":"https://doi.org/10.59015/wlr.bhsb5188","url":null,"abstract":"Environmental harm remediation occurs far less than it should in minority and low-income communities. One in six Americans live within three miles of a designated toxic waste or contaminated site, which causes a variety of health hazards. Frequently, these sites are located within minority or low-income communities. Multinational corporations and even governmental agencies sometimes intentionally or negligently exploit loopholes to escape responsibility, especially when poor or low-income communities are involved. Lead agencies that focus on remediation efforts tend to have fewer resources in poorer areas. By contrast, in affluent communities, offending companies commence remediation efforts much more quickly. Such disparate remediation efforts contravene the principle of environmental justice. Delayed or inadequate environmental remediation exacerbates harm across the country, and it disproportionately harms numerous underprivileged U.S. communities. Often, environmental justice scholars and advocates focus on equal enforcement of current environmental protection laws. I argue current environmental protection laws leave room for unequal remediation, and equalizing remediation does not lie in the strict enforcement of current environmental protection laws, particularly, when similarly situated communities are involved. This Article initiates the conversation towards equalizing remediation by highlighting failures to equalize environmental harm remediation activities. It advocates for new policies, which better ensure no community is shortchanged in such activities based on race, geographical location, or income level. It argues for various statutory amendments and distinct regulations capable of better promoting equalized remediation of environmental harms and thereby advancing environmental justice.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What it Takes to Curb the Court","authors":"","doi":"10.59015/wlr.gxea6246","DOIUrl":"https://doi.org/10.59015/wlr.gxea6246","url":null,"abstract":"It is that time again, as it seems to be every several generations, when Court-curbing is in the air. And yet, this period of Court-curbing is importantly different from prior times in which Court-curbing was successful. Start with this obvious point: in prior instances in which attacks on the Court succeeded in some fashion, the challengers had the political muscle to threaten the Court. Now, to be blunt, they don’t have the votes. For that reason alone, much of today’s talk of curbing the Court is overly optimistic at best. The central question I pursue here is what it would take for the Court to be in actual jeopardy? Drawing from history, I derive a simple set of requirements. There must be a well-defined crisis, as opposed to diffuse frustration and dread about the Court. There also must be a focused, close fit between the nature of the crisis and the proposed remedy. Both of these are necessary to get public support behind a Court-curbing measure. And third, of course, is the votes: support in the political branches is essential to take action against the Court, for the public—no matter how discontent it might be—cannot punish the Court alone. None of this is the case at present. There is indeed a crisis surrounding the Court, but it is a collection of varied concerns. There is no one focal remedy, but a mélange of proposals. Some Court decisions are out of line with public sentiment and have engendered majoritarian controversy, but other decisions, while unpopular on the left, still have majority support in the country. Perhaps most important, the political system has slid into dysfunction such that it no longer represents majority will anyway—making it extremely difficult to challenge the Court, even if the justices slide over the line. The final question I take up is what the future might hold. I explore a range of possibilities, from bipartisan support for structural change around the selection system for Supreme Court justices to the justices moving so boldly that they get in hot water and are disciplined. Ultimately, though, I fear outcomes such as these are unlikely, ultimately driving the country toward constitutional crisis.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"122 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"(A)woke Workplaces","authors":"Michael Z. Green","doi":"10.59015/wlr.ksjv1288","DOIUrl":"https://doi.org/10.59015/wlr.ksjv1288","url":null,"abstract":"With heightened expectations for a reckoning in response to the broad support for the Black Lives Matter movement after the senseless murder of George Floyd in 2020, employers explored many options to improve racial understanding through discussions with workers. In rejecting any notions of the existence of structural or systemic discrimination, let alone the need to address the consequences of such discrimination, certain groups have begun to oppose BLM by seeking to diminish any social justice actions. One of those key resistance efforts includes labelling in pejorative terms any employers that pursue anti-racism objectives via social justice statements or internal initiatives as being “woke” workplaces. These groups have also criticized employers who adopt diversity, equity, and inclusion training to help workers address racial differences by arguing these sessions apply divisive Critical Race Theory principles that discriminate against and seek to stigmatize white participants. By using CRT and woke labels as weapons, critics leave employers in the unenviable position of determining how to implement antiracism trainings in an environment of BLM reforms and race discrimination concerns. These all-encompassing anti-anti-racism narratives now force employers to show how their DEI trainings and related initiatives do not discriminate against white employees. This Article offers unique insight for employers who pursue DEI measures to achieve racial progress and asserts they may circumvent antianti-racism narratives by continuing to rely on the litigation reforms and stillpresent empirical results that led to the growth of DEI training practices in the 1990s. Many employers had adopted DEI initiatives as good corporate citizens valuing diversity in human resources as a growth of affirmative action in the 1970s. With legal concerns in the 1990s about huge jury verdicts in discrimination lawsuits and empirical indicators of systemic discrimination, employers embraced more comprehensive racial improvement and training steps via written consent decrees and judicially approved settlements. This Article concludes that awoke employers should adopt broader DEI goals and limit training on entry-level racial awareness given empirical data suggesting this particular approach tends to spark backlash without any resulting diversity improvements. Instead, awoke employers understand that most constituents want them to act and lead responsibly regarding comprehensive DEI measures by going beyond legal protections. Training can focus on managers who may subject a company to employment discrimination liability. Awoke training integrates key follow-ups and correlates to measurable DEI results. Focusing on DEI training alone ignores the more important structural change work.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religious Liberty for all? A religious right to abortion","authors":"","doi":"10.59015/wlr.wbga9226","DOIUrl":"https://doi.org/10.59015/wlr.wbga9226","url":null,"abstract":"One of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one’s faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity. But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. These plaintiffs argue that their state’s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, as well as the implications of denying the progressive religious liberty claim. Part I outlines the ballooning of religious liberty rights, and how they have usually helped conservative white Christians at the expense of less powerful groups. Part II applies the current expansive doctrine to a claim for a religious right to abortion, arguing it should succeed given recent decisions. Part III suggests that, despite the current doctrine, the Court will likely reject the claim and discusses what this failure indicates about the future of the Supreme Court.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71220298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fixing the Confirmation Process, or Fiddling While Rome Burns","authors":"Caroline R. Fredrickson","doi":"10.59015/wlr.kkom8752","DOIUrl":"https://doi.org/10.59015/wlr.kkom8752","url":null,"abstract":"This Symposium was designed to address the question of “controlling the Court through a broken confirmation process: how to fix it going forward?” But before we can answer that question, we must answer: What is the problem to be addressed? Do we need to fix the confirmation process because it enables troubling outcomes or because the process itself raises concerns? My Essay will address both of these questions, suggesting that there is both a substantive problem and a normative one. Each of these questions could elicit different answers. The normative problem is that the confirmation process itself undermines rule of law and an independent judiciary (or at least its appearance). The substantive problem is that the Court’s rulings are wrong, out of step with broadly held public views, and dangerous to democracy itself. I argue it is misguided to think we can defer fixing the substantive problem and address only the normative problem initially. This Court poses a direct threat to our democracy and thus we need an immediate response to that existential danger.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}