For more than thirty years, federal regulations--collectively known as the "Common Rule"--have governed all federally funded medical research involving human subjects. The Common Rule requires, inter alia, that any research facility receiving federal funds submit a Federal Wide Assurance (FWA) to the department or agency from which funding is sought. The FWA is a contract in which the research facility promises to abide by the Common Rule for all its research that involves human subjects, whether it is privately or federally funded. Drawing upon other instances in which third-party beneficiaries have successfully enforced government contracts, this Note argues that, upon discovery that a contract of assurance has been breached in the course of federally or privately funded research, a research subject should be able to maintain an action against the research institution as a third-party beneficiary to that contract.
{"title":"Who's watching the watchdogs? Responding to the erosion of research ethics by enforcing promises.","authors":"Lori A Alvino","doi":"10.2307/1123780","DOIUrl":"https://doi.org/10.2307/1123780","url":null,"abstract":"For more than thirty years, federal regulations--collectively known as the \"Common Rule\"--have governed all federally funded medical research involving human subjects. The Common Rule requires, inter alia, that any research facility receiving federal funds submit a Federal Wide Assurance (FWA) to the department or agency from which funding is sought. The FWA is a contract in which the research facility promises to abide by the Common Rule for all its research that involves human subjects, whether it is privately or federally funded. Drawing upon other instances in which third-party beneficiaries have successfully enforced government contracts, this Note argues that, upon discovery that a contract of assurance has been breached in the course of federally or privately funded research, a research subject should be able to maintain an action against the research institution as a third-party beneficiary to that contract.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123780","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284550","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}
Historically, all contracts with open or missing terms were found void for indefiniteness unless there was partial performance. The Uniform Com? mercial Code (U.C.C. or Code) departedfrom the common law and permitted the enforcement of sale-ofgoods contracts with open or missing terms, pro? vided that certain requirements were met. Today, the treatment ofopenand missing-term contracts in the service context is inconsistent: Some jurisdic? tions apply the traditional common-law doctrine to hold such contracts inva? lid for indefiniteness, while others apply the U.C.C. analysis to hold such contracts enforceable. This Note considers the arguments supporting both the traditional common-law rule and modern U. C. C. approach. It argues that in light of modern commercial reality, the courts should apply the U. C. C. analysis to both sale-of-goods and service contracts. This unified approach would eliminate confusion in the current state oflaw and promote flexibility in commercial transactions for both goods and services.
{"title":"CONTRACTS WITH OPEN OR MISSING TERMS UNDER THE UNIFORM COMMERCIAL CODE AND THE COMMON LAW: A PROPOSAL FOR UNIFICATION","authors":"Nellie Eunsoo Choi","doi":"10.2307/1123702","DOIUrl":"https://doi.org/10.2307/1123702","url":null,"abstract":"Historically, all contracts with open or missing terms were found void for indefiniteness unless there was partial performance. The Uniform Com? mercial Code (U.C.C. or Code) departedfrom the common law and permitted the enforcement of sale-ofgoods contracts with open or missing terms, pro? vided that certain requirements were met. Today, the treatment ofopenand missing-term contracts in the service context is inconsistent: Some jurisdic? tions apply the traditional common-law doctrine to hold such contracts inva? lid for indefiniteness, while others apply the U.C.C. analysis to hold such contracts enforceable. This Note considers the arguments supporting both the traditional common-law rule and modern U. C. C. approach. It argues that in light of modern commercial reality, the courts should apply the U. C. C. analysis to both sale-of-goods and service contracts. This unified approach would eliminate confusion in the current state oflaw and promote flexibility in commercial transactions for both goods and services.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123702","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284122","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}
Neither the academic literature nor the tort reform lobby has observed a deep irony in the American law of enterprise liability. The intellectual roots of enterprise liability lie in a late nineteenth-century movement to reengineer the workplace, a movement whose best known exponent was scientific manager Frederick Winslow Taylor. Along with a generation of managerial engineers, Taylor popularized broad ideas about managerial responsibility for the operations of enterprise - ideas that when loosed on the decentralized institutions of American tort law ultimately found one of their strongest expressions in the law of enterprise liability. Enterprise liability thus stands as one of the great twentieth-century examples of the unanticipated consequences of social action.
{"title":"Speedy Fred Taylor and the Ironies of Enterprise Liability","authors":"J. Witt","doi":"10.2307/1123701","DOIUrl":"https://doi.org/10.2307/1123701","url":null,"abstract":"Neither the academic literature nor the tort reform lobby has observed a deep irony in the American law of enterprise liability. The intellectual roots of enterprise liability lie in a late nineteenth-century movement to reengineer the workplace, a movement whose best known exponent was scientific manager Frederick Winslow Taylor. Along with a generation of managerial engineers, Taylor popularized broad ideas about managerial responsibility for the operations of enterprise - ideas that when loosed on the decentralized institutions of American tort law ultimately found one of their strongest expressions in the law of enterprise liability. Enterprise liability thus stands as one of the great twentieth-century examples of the unanticipated consequences of social action.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123701","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284066","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}
This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law's "ossification" - to its having been essentially sealed off both from democratic revision and renewal and from local experimentation and innovation to a remarkably complete extent and for a remarkably long time. The elements of this process of ossification are various and familiar; yet, once assembled, they make up an impressive set of barriers to innovation. Most obviously, the National Labor Relations Act has been virtually unamendable for over forty years due to an exceptionally durable congressional deadlock. But the labor law scheme has also been effectively cut off from "market"-driven competition by employers; from the entrepreneurial energies of individual plaintiffs and the plaintiff's bar, and the creativity they can sometimes coax from the courts; from variation and experimentation at the state or local level by representative or judicial bodies; from the winds of changing constitutional doctrine; and from emerging transnational legal norms. Finally, the National Labor Relations Board - the designated institutional vehicle for adjusting the labor laws to modern conditions - is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. While the argument may seem to counsel only pessimism about the prospects for reform, it may also help to identify potential pathways of change that have not been fully appreciated. Indeed, some of those pathways are being paved by the process of ossification itself. By impelling private parties to find their own paths outside of the existing regime, the ossification of labor law may be setting in motion the very forces that may eventually lead toward legal change.
{"title":"The Ossification of American Labor Law","authors":"C. Estlund","doi":"10.2307/1123792","DOIUrl":"https://doi.org/10.2307/1123792","url":null,"abstract":"This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law's \"ossification\" - to its having been essentially sealed off both from democratic revision and renewal and from local experimentation and innovation to a remarkably complete extent and for a remarkably long time. The elements of this process of ossification are various and familiar; yet, once assembled, they make up an impressive set of barriers to innovation. Most obviously, the National Labor Relations Act has been virtually unamendable for over forty years due to an exceptionally durable congressional deadlock. But the labor law scheme has also been effectively cut off from \"market\"-driven competition by employers; from the entrepreneurial energies of individual plaintiffs and the plaintiff's bar, and the creativity they can sometimes coax from the courts; from variation and experimentation at the state or local level by representative or judicial bodies; from the winds of changing constitutional doctrine; and from emerging transnational legal norms. Finally, the National Labor Relations Board - the designated institutional vehicle for adjusting the labor laws to modern conditions - is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. While the argument may seem to counsel only pessimism about the prospects for reform, it may also help to identify potential pathways of change that have not been fully appreciated. Indeed, some of those pathways are being paved by the process of ossification itself. By impelling private parties to find their own paths outside of the existing regime, the ossification of labor law may be setting in motion the very forces that may eventually lead toward legal change.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123792","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284902","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 SUPREME ... CRIME' AND ITS ORIGINS: THE LOST LEGISLATIVE HISTORY OF THE CRIME OF AGGRESSIVE WAR","authors":"Jonathan A. Bush","doi":"10.2307/1123729","DOIUrl":"https://doi.org/10.2307/1123729","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123729","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284508","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":"GARDEN LEAVE: A POSSIBLE SOLUTION TO THE UNCERTAIN ENFORCEABILITY OF RESTRICTIVE EMPLOYMENT COVENANTS","authors":"Greg T. Lembrich","doi":"10.2307/1123728","DOIUrl":"https://doi.org/10.2307/1123728","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123728","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284469","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}
In modern times, a large and growing number of Americans qualify as bona fide residents of two or more locales. These dual residents are subject to local taxes and ordinances and are profoundly affected by policies that concern their second-home community. Yet, in most states, individuals are prohibited from voting in more than one location through voting statutes that equate residence with domicile. Recently, the Second Circuit upheld a New York election law that prevents second-home owners from voting in both of their residential districts. This Note argues that extending the franchise in local elections to individuals who qualify as bona fide residents of a community, regardless of whether they already qualify to vote in another community, is required under the Equal Protection Clause of the Fourteenth Amendment. Such an extension is also supported by normative arguments arising from the democratic tradition of government by the consent of the governed and against taxation without representation.
{"title":"Dual Resident Voting: Traditional Disenfranchisement and Prospects for Change","authors":"A. Ostrow","doi":"10.2307/1123664","DOIUrl":"https://doi.org/10.2307/1123664","url":null,"abstract":"In modern times, a large and growing number of Americans qualify as bona fide residents of two or more locales. These dual residents are subject to local taxes and ordinances and are profoundly affected by policies that concern their second-home community. Yet, in most states, individuals are prohibited from voting in more than one location through voting statutes that equate residence with domicile. Recently, the Second Circuit upheld a New York election law that prevents second-home owners from voting in both of their residential districts. This Note argues that extending the franchise in local elections to individuals who qualify as bona fide residents of a community, regardless of whether they already qualify to vote in another community, is required under the Equal Protection Clause of the Fourteenth Amendment. Such an extension is also supported by normative arguments arising from the democratic tradition of government by the consent of the governed and against taxation without representation.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123664","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284087","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}
In this issue the Columbia Law Review joins in the celebration the 75th anniversary of the admission of women to the Columbia Law School. I am grateful to the editors of the Review for inviting me to contribute, and for the open-endedness of the invitation (or, in other words, what follows is my fault, not theirs). This has been an opportunity for me to do some research, some recalling and some reflection (and to tell a few stories). My research is incomplete, one might say sketchy, but I trust reliable as far as it goes. My recollections may well not match those of others who were on the scene at Columbia in the times of which I write, but that is in the nature of recollection. My reflections in some instances have surprised me; we shall have to see what you make of them. (And I hope you enjoy the stories.)
{"title":"SOMETHING TO REMEMBER, SOMETHING TO CELEBRATE: WOMEN AT COLUMBIA LAW SCHOOL","authors":"B. A. Black","doi":"10.2307/1123790","DOIUrl":"https://doi.org/10.2307/1123790","url":null,"abstract":"In this issue the Columbia Law Review joins in the celebration the 75th anniversary of the admission of women to the Columbia Law School. I am grateful to the editors of the Review for inviting me to contribute, and for the open-endedness of the invitation (or, in other words, what follows is my fault, not theirs). This has been an opportunity for me to do some research, some recalling and some reflection (and to tell a few stories). My research is incomplete, one might say sketchy, but I trust reliable as far as it goes. My recollections may well not match those of others who were on the scene at Columbia in the times of which I write, but that is in the nature of recollection. My reflections in some instances have surprised me; we shall have to see what you make of them. (And I hope you enjoy the stories.)","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123790","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284683","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":"ALEXANDER V. SANDOVAL AND ITS IMPLICATIONS FOR DISPARATE IMPACT REGIMES","authors":"J. Laufer","doi":"10.2307/1123793","DOIUrl":"https://doi.org/10.2307/1123793","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123793","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284980","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}
The tort claim of medical monitoring has produced a disarrayed set of state and federal court opinions. The procedural dimensions of this claim are as vexing as the related substantive issues with which courts and commentators have long been grappling. Ordinarily, mass tort actions, typically involving claims for money damages, are certified under Rule 23(b)(3), which class category requires the right to notice and to opt out of a proceeding, and the fulfillment of "predominance" and "superiority" requirements. Such features are absent in Rule 23's mandatory classes. Nevertheless, this Note argues that it is appropriate for claims exclusively for medical monitoring to be certified as a mandatory class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure or its state law counterparts. Given that a medical monitoring fund is an equitable remedy, nonpreclusive of a future damages claim, and groupwide in nature, the (b)(2) class category adequately protects the due process rights of class plaintiffs.
{"title":"The class certification of medical monitoring claims.","authors":"P. Venugopal","doi":"10.2307/1123794","DOIUrl":"https://doi.org/10.2307/1123794","url":null,"abstract":"The tort claim of medical monitoring has produced a disarrayed set of state and federal court opinions. The procedural dimensions of this claim are as vexing as the related substantive issues with which courts and commentators have long been grappling. Ordinarily, mass tort actions, typically involving claims for money damages, are certified under Rule 23(b)(3), which class category requires the right to notice and to opt out of a proceeding, and the fulfillment of \"predominance\" and \"superiority\" requirements. Such features are absent in Rule 23's mandatory classes. Nevertheless, this Note argues that it is appropriate for claims exclusively for medical monitoring to be certified as a mandatory class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure or its state law counterparts. Given that a medical monitoring fund is an equitable remedy, nonpreclusive of a future damages claim, and groupwide in nature, the (b)(2) class category adequately protects the due process rights of class plaintiffs.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123794","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68285094","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}
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