Emerging genetic and molecular technologies are revolutionizing our understanding of the relationship between genes and the environment. This Article develops an innovative framework for understanding the implications of the genomic revolution for the law of toxic torts. Professor Grodsky demonstrates how new technologies are poised to challenge longstanding distinctions between legally inconsequential "risk" and remediable "injury," and how the U.S. legal system will need to adapt to this emerging reality. If the law remains wedded to conventional notions of injury, it will ignore the fruits of a scientific revolution and thus may forego new remedial opportunities as yet unimagined. This is particularly significant given that twenty-first century medicine strives to "go beyond the limitations of biology" and detect, prevent, and treat disease at the molecular level. The transformative and rapidly evolving technologies of the genomic era will present herculean challenges for the legal system. But opportunities to fashion new remedies and create new efficiencies must not be overlooked in the process. Professor Grodsky recommends legal approaches to balance the goals of deterrence and legal restraint in an age of accelerating scientific change.
{"title":"Genomics and toxic torts: dismantling the risk-injury divide.","authors":"Jamie A Grodsky","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Emerging genetic and molecular technologies are revolutionizing our understanding of the relationship between genes and the environment. This Article develops an innovative framework for understanding the implications of the genomic revolution for the law of toxic torts. Professor Grodsky demonstrates how new technologies are poised to challenge longstanding distinctions between legally inconsequential \"risk\" and remediable \"injury,\" and how the U.S. legal system will need to adapt to this emerging reality. If the law remains wedded to conventional notions of injury, it will ignore the fruits of a scientific revolution and thus may forego new remedial opportunities as yet unimagined. This is particularly significant given that twenty-first century medicine strives to \"go beyond the limitations of biology\" and detect, prevent, and treat disease at the molecular level. The transformative and rapidly evolving technologies of the genomic era will present herculean challenges for the legal system. But opportunities to fashion new remedies and create new efficiencies must not be overlooked in the process. Professor Grodsky recommends legal approaches to balance the goals of deterrence and legal restraint in an age of accelerating scientific change.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 6","pages":"1671-734"},"PeriodicalIF":4.9,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26798148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Immunity for immunizations: tort liability, biodefense, and Bioshield II.","authors":"Lincoln Mayer","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 6","pages":"1753-90"},"PeriodicalIF":4.9,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26798149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In light of the expansive interpretation of the public use requirement, the payment of just compensation remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property to its owner. Subjective value is neither observable nor verifiable to third parties and courts cannot rely upon owners' reports of the value they attach to their properties. To date, the challenge of screening truthful from exaggerated evaluation has proven insurmountable.This Article solves the undercompensation conundrum. It offers a novel self-assessment mechanism that enables the payment of full compensation at subjective value when private property is taken by eminent domain. Under the proposed mechanism, property owners would get to set the price of the property designated for condemnation. The government could then either take the property at the designated price, or abstain, leaving the property subject to two new proposed restrictions. First, for the life of the owner, the property could not be sold for less than the self-assessed price, adjusted on the basis of the local housing price index. Second, the self-assessed price - discounted to take account of the peculiarities of property tax assessments - would become the new benchmark for the owner's property tax liability. The Article shows that under most conditions, these restrictions will induce honest reporting by owners, while reducing the transaction costs created by the compensation process. The result is a dramatically more efficient law of eminent domain that is also far more respectful of private property rights.
{"title":"Taking Compensation Private","authors":"Abraham Bell, Gideon Parchomovsky","doi":"10.2139/SSRN.806164","DOIUrl":"https://doi.org/10.2139/SSRN.806164","url":null,"abstract":"In light of the expansive interpretation of the \u001cpublic use\u001d requirement, the payment of \u001cjust compensation\u001d remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property to its owner. Subjective value is neither observable nor verifiable to third parties and courts cannot rely upon owners' reports of the value they attach to their properties. To date, the challenge of screening truthful from exaggerated evaluation has proven insurmountable.This Article solves the undercompensation conundrum. It offers a novel self-assessment mechanism that enables the payment of full compensation at subjective value when private property is taken by eminent domain. Under the proposed mechanism, property owners would get to set the price of the property designated for condemnation. The government could then either take the property at the designated price, or abstain, leaving the property subject to two new proposed restrictions. First, for the life of the owner, the property could not be sold for less than the self-assessed price, adjusted on the basis of the local housing price index. Second, the self-assessed price - discounted to take account of the peculiarities of property tax assessments - would become the new benchmark for the owner's property tax liability. The Article shows that under most conditions, these restrictions will induce honest reporting by owners, while reducing the transaction costs created by the compensation process. The result is a dramatically more efficient law of eminent domain that is also far more respectful of private property rights.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 1","pages":"871"},"PeriodicalIF":4.9,"publicationDate":"2007-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67833624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At first glance, it is puzzling to suggest that courts should care whether the public would be outraged by their decisions; judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause it is meant to promote or impose serious social harms, judges have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the Court's ruling would be incorrect on the merits; if most people disagree with the Court's decision, perhaps the Court is wrong. Those who adopt a method on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on nonconsequentialist grounds (including some originalists). The epistemic argument for attention to outrage is greatly weakened if people suffer from a systematic bias or if the public view is a product of an informational, moral, or legal cascade. There is also a strong argument for banning consideration of the effects of public outrage on rule-consequentialist grounds. Judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. These points have general implications for those who favor popular constitutionalism, or judicial restraint, on democratic grounds. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage.
{"title":"If People Would Be Outraged by Their Rulings, Should Judges Care?","authors":"C. Sunstein","doi":"10.2139/SSRN.965581","DOIUrl":"https://doi.org/10.2139/SSRN.965581","url":null,"abstract":"At first glance, it is puzzling to suggest that courts should care whether the public would be outraged by their decisions; judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause it is meant to promote or impose serious social harms, judges have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the Court's ruling would be incorrect on the merits; if most people disagree with the Court's decision, perhaps the Court is wrong. Those who adopt a method on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on nonconsequentialist grounds (including some originalists). The epistemic argument for attention to outrage is greatly weakened if people suffer from a systematic bias or if the public view is a product of an informational, moral, or legal cascade. There is also a strong argument for banning consideration of the effects of public outrage on rule-consequentialist grounds. Judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. These points have general implications for those who favor popular constitutionalism, or judicial restraint, on democratic grounds. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"60 1","pages":"155"},"PeriodicalIF":4.9,"publicationDate":"2007-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67913288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
By "lay justices" I mean justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins - methodological diversity, ideological diversity, and racial or ethnic or gender diversity - say little or nothing about professional diversity on the Court. I argue that the optimal number of lay justices is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill.
{"title":"Should We Have Lay Justices","authors":"Adrian Vermeule","doi":"10.2139/SSRN.943369","DOIUrl":"https://doi.org/10.2139/SSRN.943369","url":null,"abstract":"By \"lay justices\" I mean justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins - methodological diversity, ideological diversity, and racial or ethnic or gender diversity - say little or nothing about professional diversity on the Court. I argue that the optimal number of lay justices is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 1","pages":"1569"},"PeriodicalIF":4.9,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67901650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The case against blanket First Amendment protection of scientific research: articulating a more limited scope of protection.","authors":"Steve Keane","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 2","pages":"505-50"},"PeriodicalIF":4.9,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26484920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A central concern in domestic economic policy has been the great increase in consumer bankruptcy filings since 1980. That concern was a major cause of the adoption of the 2005 amendments to the Bankruptcy Code. We analyze the data from three studies of consumer bankruptcy over twenty years to learn more about the causes of that increase. One consistent claim has been that a decline in reputational loss (stigma) has made filing for bankruptcy easier, thus explaining the rise in filings. The principal competing claim has been that increased filings arise from increased financial distress. We find that the declining-stigma hypothesis is implausible because the data show that consumer bankrupts are even more indebted now than their counterparts were in 1981 and 1991 and that there is no identifiable group of less-indebted bankrupts that were tempted into bankruptcy by reduced reputational costs. Those data and other factors support an inference that the stigma of bankruptcy may have increased over the past twenty years.
{"title":"Less Stigma or More Financial Distress: An Empirical Analysis of the Extraordinary Increase in Bankruptcy Filings","authors":"T. Sullivan, E. Warren, J. L. Westbrook","doi":"10.2139/SSRN.903355","DOIUrl":"https://doi.org/10.2139/SSRN.903355","url":null,"abstract":"A central concern in domestic economic policy has been the great increase in consumer bankruptcy filings since 1980. That concern was a major cause of the adoption of the 2005 amendments to the Bankruptcy Code. We analyze the data from three studies of consumer bankruptcy over twenty years to learn more about the causes of that increase. One consistent claim has been that a decline in reputational loss (stigma) has made filing for bankruptcy easier, thus explaining the rise in filings. The principal competing claim has been that increased filings arise from increased financial distress. We find that the declining-stigma hypothesis is implausible because the data show that consumer bankrupts are even more indebted now than their counterparts were in 1981 and 1991 and that there is no identifiable group of less-indebted bankrupts that were tempted into bankruptcy by reduced reputational costs. Those data and other factors support an inference that the stigma of bankruptcy may have increased over the past twenty years.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 1","pages":"213-256"},"PeriodicalIF":4.9,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.903355","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Realizing two-tiered innovation policy through drug regulation.","authors":"William E Ridgway","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"58 4","pages":"1221-50"},"PeriodicalIF":4.9,"publicationDate":"2006-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26011327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Defining the boundaries of \"personal injury\": Rainer v. Union Carbide Corp.","authors":"Maya Sen","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"58 4","pages":"1251-66"},"PeriodicalIF":4.9,"publicationDate":"2006-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26011328","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"What the Right of Publicity Can Learn from Trademark Law","authors":"Stacey L. Dogan, Mark A. Lemley","doi":"10.31235/osf.io/r8pvh","DOIUrl":"https://doi.org/10.31235/osf.io/r8pvh","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"58 1","pages":"1161-1220"},"PeriodicalIF":4.9,"publicationDate":"2005-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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