SMU law review : a publication of Southern Methodist University School of Law最新文献

Medical researchers are sounding the alarm that our society's shift to sedentary jobs is triggering an epidemic of chronic diseases, such as type 2 diabetes. This Article brings that modern medical research to a tax debate and hopes to help revolutionize the sports world. This Article's proposal seeks to shift our current excessive emphasis on youth, college, and elite sports to an emphasis on participation by all. Currently, the tax exemption rules vigorously promote youth and college sports but generally deny most-favored tax status to nonprofits promoting nonelite adult sports. These rules are based on doctrines linking sports with education, which developed in a bygone era when sports were for students and the idle rich, and most adults got plenty of physical activity at work. As recently as 1960, approximately fifty percent of all jobs required at least moderate physical activity. By 2006, that figure had plummeted to twenty percent, and the average U.S. male age forty to fifty was thirty-two pounds heavier than his counterpart in 1960. Over this same time span, there has been a dramatic increase in chronic diseases associated with inactivity. Scientists say that greater physical activity and improved diet are the ways to fight this epidemic. This Article makes the case for granting most-favored tax status to organizations that promote nonelite adult athletics and do not charge high fees that would exclude a significant portion of the community.

The "cyberworld" in which we live has fundamentally and irrevocably changed the nature of human interaction. For many, electronic mail, texting, and social networking sites have significantly limited traditional face-to-face interaction. While the benefits of technological progress are self-evident, the ease with which people can share personal information virtually has also produced troubling byproducts. The transmission of sexually provocative images between teenagers, known colloquially as "sexting," is one such example. As suicides and other sexting-related tragedies multiply, jurisdictions coast-to-coast are searching frantically for ways to curb the practice. Due to the harshness of existing criminal statutes, legislators have favored the creation of a separate sexting offense to address misconduct. Because these new laws vary greatly in both content and severity of prescribed penalties, some have argued that they are unprincipled. In light of contemporary societal disinterest in prosecuting consensual sexual activity between adolescents, critics also consider them misguided and anachronistic. These allegations suffer from their failure to place anti-sexting initiatives in proper historical context. These laws represent a present-day manifestation of the protectionist and paternalistic impulses that motivated statutory rape laws in the 18th, 19th, and 20th centuries. Both anti-sexting and statutory rape laws share the same fundamental goal: avoiding reputational ruin and its untoward consequences. Whereas sexual intercourse was once the necessary catalyst, electronic devices used to disseminate sexually explicit material now create the risk. In today's virtual world, sexting represents a sort of statutory rape by proxy where cell phones, laptops, and iPads provide the violative act that can ruin lives. In sum, the campaign to outlaw sexting is neither misguided nor anachronistic. It reflects a widespread belief in the need to protect adolescents from sexting-related harm, coupled with a paternalistic desire to restore some of the moral innocence that is rapidly disappearing in the teenage cyberworld.

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces. This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It argues for a shift in the conceptual and regulatory frameworks that govern biomedical research. When studies involve electronic record review rather than human experimentation, the traditional, autonomy-dominated model should give way to one that emphasizes the common good. In record-based studies, the limited benefits of individual informed consent come at too high a cost-difficult administrative burdens, significant expenses, and a tendency to create selection biases that distort study outcomes. Other mechanisms can better protect data subjects' privacy and dignitary interests without compromising research opportunities. In this Article, we formulate a novel, multi-faceted approach to achieve these ends. This approach recognizes that technical means for achieving identity concealment and information security are necessary but not sufficient to protect patients' medical privacy and to foster public trust while facilitating research. Hence, we call for supplementing such means with (1) an oversight process that is tailored to record-based research and applies even to de-identified patient records, which are currently exempt from scrutiny, and (2) public notice and education about the nature and potential benefits of such research.

The Patient Protection and Affordable Care Act of 2010 tackles many health care-related issues, but medical malpractice liability reform is not one of them. Despite being a perennial target of health care reform-with accompanying assertions that a medical malpractice liability crisis is corrupting the delivery of health care in the United States-only three short sections that made little substantive change to existing law were devoted to it in a bill that eventually totaled over 900 pages in length. This Article describes what the bill did, what it failed to do, and its likely and perhaps unanticipated consequences for the ongoing medical malpractice liability reform debate.

Through the careful examination of a case taken up by the U.S. Supreme Court during the 2010 Term, Schwarzenegger v. Entertainment Merchants Ass'n, this article assesses a new perspective on the issue of regulating children's access to mass media. The dominant influence of mass media on children is recognized by experts across many disciplines, including child development, communication theory, psychology, sociology, and medicine. Numerous studies demonstrate potential harm to children from exposure to mass media and marketing sources. Nevertheless, courts have been reluctant to recognize such consequences, primarily on the basis of First Amendment and free speech concerns. Indeed, in a significant line of cases the courts have invalidated every legislative effort to regulate children's access to violent video games. This legal reluctance presents a major barrier to the real world application of and benefit from research conclusions regarding the impact of media violence and consumer culture on children. While research of this nature has supported attempts at industry self-regulation or voluntary compliance with ethical guidelines, such efforts have achieved little success. The disconnect between law and social science has led scholars like Professor Barbara Bennett Woodhouse to propose a reframing of the issues. She calls for a paradigm shift from family law's traditional approach of the parent-child-state triangle to recognize the influence of what she terms "mass-media marketing." She proposes a new "child-centered approach to environmental ethics," or in her words "ecogenerism," and suggests that those who advocate for protection of children from the harms of mass media and marketing have much to learn from the environmental law and ethics movement. Woodhouse's proposal offers an appealing perspective for those who support regulation of children's access to harmful media. The real issue, however, is whether ecogenerism will evolve from academic theory to actual practice. This article tests her theory by revisiting the line of violent video game cases to evaluate whether her ecogenerist perspective can achieve any real change in the courts' decisions. Particular attention is devoted to challenges presented by First Amendment free speech protections with a primary focus on the Ninth Circuit's decision in Schwarzenegger to invalidate a California statute prohibiting the sale or rental of violent video games to minors, a case that the Supreme Court is poised to soon decide. While some speculate that the Supreme Court is unlikely to reverse the Ninth Circuit's decision given the uniform position of other courts on this issue, this article reveals that an ecogenerist perspective demands a reversal by the Court precisely for that reason. Should the Court affirm the Ninth Circuit's invalidation of the statute, the article concludes by proposing recommendations for future research and regulatory efforts from an ecogenerist perspective.