Rulemaking Amidst Growing Diversity: A Club-of-Clubs Approach to WTO Reform and New Issue Selection

The diverse nature of World Trade Organization (WTO) membershipmakes it highly unlikely that members will all be willing andable to sign on to the full range of agreements that many membersmight find desirable. The paper proposes an approach in whichthe WTO would supplement its core agreements with additional‘clubs’ to which only some members would subscribe.The approach is a compromise in which diversity can co-existwith a more extensive set of commitments for willing members.The paper provides suggestions for how the clubs would be selectedand how they would operate. Clubs would be chosen where theycould help promote the WTO’s central missions: loweringbarriers to trade, reducing the discriminatory effects of domesticpolicies, and enhancing economic development through trade.All WTO members would participate in negotiating club rules,but members would be free not to join. Clubs would use the DisputeSettlement Understanding (DSU) to deal with disputes, but suspensionof concessions in the event of violations would be confinedto the provisions of the same club in which the violation occurred.     

No-fault cerebral palsy insurance: an alternative to the obstetrical malpractice lottery

Sixty percent of malpractice premiums paid by obstetricians go to cover suits for alleged birth-related cerebral palsy (CP). Yet substantially less than half of that money goes to CP victims, and less than 10 percent of children with CP receive any compensation at all from tort suits. This paper proposes a system that would compensate all children born with CP for most handicap-related expenses, in exchange for which the children would be foreclosed from bringing suits alleging birth-related malpractice. Malpractice would be policed by a state board, which would investigate all CP cases. This proposal would be more equitable than current systems. It would also be less expensive, since it would avoid costly litigation and decrease the cost of obstetrical malpractice insurance.     

Instructing jurors

This field experiment examines the advantages and disadvantages of two jury instruction procedures: instructing the jury prior to the evidence portion of the trial and providing the jury with a written copy of the judge's instructions to take with them to their deliberations. The presence or absence of both procedures was randomly assigned to 34 civil and 33 criminal trials in Wisconsin circuit courts. Following the trials, questionnaires were administered to judges, lawyers, and jurors. Overall, the findings do not provide any support for the hypotheses that written instructions would help the jurors to recall the judge's instructions, that they would increase the jurors' satisfaction with the trial, or that they would shorten the trial. The written copy did appear to reduce disputes among jurors about the judge's instructions. No evidence was found to support the notion that written instructions would reduce the amount of time that juries devoted to the evidence, that they would lengthen deliberations, or that they would place excessive demands on the resources of the court. The findings also did not support the hypotheses that preliminary instructions would assist the jurors with recall of the judge's instructions or the evidence, or that they would reduce juror confusion about the trial procedure, but did support the hypotheses that preliminary instructions would assist the jurors with following legal guidelines in their decision making and would increase the jurors' satisfaction with the trial process. No evidence was found to support the hypotheses that preliminary instructions would be an impractical procedure or that they would place excessive demands on the judge.Northwestern University     

Improving the exclusionary rule: A remedial education model

This article reviews the United States Supreme Court decisions on the rationale for the exclusionary rule and numerous law review articles suggesting changes in the rule. A new model is proposed to dovetail with the rule. The courts would participate in developing a compendium of rules and regulations for officers to follow in order to protect constitutional rights. Evidence would continue to be excluded if it were illegally seized in a bad faith. All officers who violate constitutional rights would be subject to remedial education. Supervisory officers and training personnel would also be responsible for the violations committed by line officers. Violations of constitutional rights would be considered when promotions and other personnel decisions are made. Lastly, the victim would be compensated by the governmental agency employing the offending officer with the agency seeking reimbursement from the employee.     

Strengthening Green Global Governance in a Disparate World SocietyWould a World Environment Organisation Benefit the South?

The debate on the advantages and disadvantages of upgrading the United Nations Environment Programme to a 'world environment organisation' (WEO) has gained momentum in both academe and politics. This article contends that a WEO would further the interests especially of developing countries, because it would provide them, first, a high-level forum to unite their individual bargaining power against the major industrialised countries. Second, a WEO would assist Southern efforts to garner international support for environmental programmes in regions and sectors that are increasingly bypassed by economic globalisation. Third, a WEO would create a locus to politically institutionalise the influence of non-governmental lobbyists in a way that increases the balance of opinions and perspectives. The article then addresses special challenges and caveats for developing countries in the upcoming negotiation process, in particular whether an upgraded UNEP would address only 'global' issues, thus absolving the international community from assisting developing countries in mitigating the more pressing local environmental issues in the South; whether the new body would have powerful sanctioning mechanisms, which might disproportionally affect developing countries; and what decision-making procedures the new body would have.     

Payment for non-VA physician services associated with either outpatient or inpatient care provided at non-VA facilities--VA. Proposed rule

This document proposes to amend Department of Veterans Affairs (VA) medical regulations concerning payment for non-VA physician services that are associated with either outpatient or inpatient care provided to eligible VA beneficiaries at non-VA facilities. We propose that when a service specific reimbursement amount has been calculated under Medicare's Participating Physician Fee Schedule, VA would pay the lesser of the actual billed charge or the calculated amount. We also propose that when an amount has not been calculated, VA would pay the amount calculated under a 75th percentile formula or, in certain limited circumstances, VA would pay the usual and customary rate. In our view, adoption of this proposal would establish reimbursement consistency among federal health benefits programs, would ensure that amounts paid to physicians better represent the relative resource inputs used to furnish a service, and, would, as reflected by a recent VA Office of Inspector General (OIG) audit of the VA fee-basis program, achieve program cost reductions. Further, consistent with statutory requirements, the regulations would continue to specify that VA payment constitutes payment in full.     

Expanding a traditional criminal justice curriculum into an innovative social control curriculum

Most criminal justice curricula are limited to crime and the criminal justice system. Such programs could profit from evolution into a curriculum covering all means by which behavior is controlled in society. Subject areas of such a social control curriculum would include: sources and nature of behavior; selection of behaviors for social control; criminal justice systems; non-criminal justice, legal, social control systems; and nonlegal, social control systems. Crime and criminal justice would remain major topics, but would be complemented by and blended with the topics of noncriminal behavior and non-criminal justice system controls on behavior. However, the focus would remain on social control of behavior and would not be expanded to include all community interaction.     

Sir/St. Thomas More on the US Constitution: ‘More Perfect’ is not Utopian

Sir Thomas More was a politician, statesman, visionary humanist, and a friend of Erasmus, Colet, and Henry VIII. His most famous literary work is Utopia, a word coined based on the Greek for ‘no place’. Its influence has been enormous, inspiring social thinkers as diverse as Rousseau and B. F. Skinner. Using the principles More seemed to advocate, this article addresses the question: ‘What would he have thought of the Constitution of the United States had he lived to read it and experience life under its aegis?’ Much of what the Americans have done he would appreciate, much he would deplore. He would appreciate the federal nature of government, the elective nature of the legislature, and the freedom granted to citizens. He would have deplored slavery based on race and applauded the 13th Amendment. He would have looked askance at the role of the president and the necessity for a military. In sum, if we can believe that what he wrote in Utopia reflects his attitudes correctly, Thomas More’s would be a mixed verdict on American republicanism.     

License term for medical use licenses--NRC. Proposed rule

The U.S. Nuclear Regulatory Commission is proposing to amend 10 CFR part 35 to eliminate the five-year term limit for medical use licenses in 10 CFR 35.18. License terms for licenses issued pursuant to part 35 would be set, by policy up to ten years, as are the license terms for other materials licenses. The NRC would issue some licenses for shorter terms, if warranted by the individual circumstances of license applicants. The amendment would reduce the administrative burden of license renewals for both NRC and licensees, and would support NRC's goal of streamlining the licensing process.     

Increasing jurors' participation in trials

A field experiment is reported that examines the advantages and disadvantages of two juror participation procedures: Allowing jurors to take notes during the trial, and allowing jurors to direct questions to witnesses. The presence or absence of both procedures was randomly assigned to 34 civil and 33 criminal trials in Wisconsin circuit courts. Following the trials, questinnaires were administered to judges, lawyers, and jurors. Overall, no evidence is found to support the hypotheses that juror notetaking would serve as a useful memory aid, would assist the jury with recall of the judge's instructions, or would increase the jurors' confidence in their verdict. The hypothesis that juror notetaking would increase juror satisfaction with the trial was supported. None of the findings supported the conclusion that juror notetaking was distracting, that notetakers were overly influential during the deliberations, that the jurors' notes were inaccurate, that the notes favored the plaintiff, or that the notes heightened juror disagreement about the trial evidence. It was hypothesized, but not found, that allowing juror questions of witnesses would uncover important issues in the trial and would increase the jurors' satisfaction with the trial procedure. However, juror questions did serve to alleviate juror doubts about the trial testimony, and provided the lawyers with feedback about the jurors' perception of the trial. No evidence was found to support the expectations that juror questions would slow the trial, would upset the lawyers' strategy, or that the question-asking procedure would be a nuisance to the courtroom staff. Furthermore, the lawyers did not appear overly reluctant to object to inappropriate questions from jurors, and jurors did not report being embarassed or angry when their questions were objected to.Dispute Resolution Research Center, Northwestern University     

Rape Without Consent

This article is a defence of a differentiated offence of rape.A differentiated offence is an offence which can be completedin a number of different ways that cannot be captured in a simpledefinition. It is argued that such an offence would meet severalconcerns that have been expressed in the feminist literatureabout the law of rape. It would assist certainty, it would reducethe extent to which the offence focuses on the conduct of thecomplainant, it would allow the law to express that violenceis central to the offence of rape where violence is present,but it would also allow convictions of rape where there is noviolence. The argument is developed through critical engagementwith the law of rape as set out in the Sexual Offences Act 2003.The Sexual Offences Act, it is argued, fails adequately to meetthe concerns outlined above.     

How to Improve Forensic Science

Some institutional structures for inquiry produce better approximations to truth than others. The current institutional structure of police forensics gives each lab a monopoly in the analysis of the police evidence it receives. Forensic workers have inadequate incentives to produce reliable analyses of police evidence. Competition would create such incentives. I outline a system of “competitive self regulation” for police forensics.Each jurisdiction would have several competing forensic labs. Evidence would be divided and sent to one, two, or three separate labs.Chance would determine which labs and how many would receive evidence to analyze.Competitive selfregulation improves forensics by creating incentives for error detection and reducing incentives to produce biased analyses. JEL Classification: K14, K42, H11     

Fossil Fuel Extraction Bans: A Takings Analysis

Hypothetical state or federal bans on the extraction of petroleum and natural gas in the United States, particularly if such prohibitions interrupted active mineral leases, would likely provoke a slew of takings claims. The prevailing legal framework, along with controlling precedent from the Supreme Court and federal Courts of Appeals, suggests that many such takings claims would fail. Certain federal leaseholders and owners of freehold mineral estates, however, would probably have colorable claims. The state and federal governments should therefore consider takings law when formulating any environmental policy that would limit fossil resource extraction.     

Dissemination of information on unapproved/new uses for marketed drugs, biologics, and devices--FDA. Proposed rule

The Food and Drug Administration (FDA) is proposing to issue new regulations pertaining to the dissemination of information on unapproved uses (also referred to as "new uses" and "off-label uses") for marketed drug, including biologics, and devices. The proposal, which would implement the dissemination provisions of the Food and Drug Administration Modernization Act of 1997 (FDAMA), would describe the content of and establish procedures for a manufacturer's submissions to FDA before it may begin disseminating information on the new use. The proposal also would describe how manufacturers seeking to disseminate new use information must agree to submit a supplement for that use within a specified period of time, unless a supplemental application already has been submitted or FDA has exempted the manufacturer from the requirement to submit a supplement. The proposal also would provide for requests to extend the time period for submitting a supplement for a new use, and it would describe how a manufacturer can seek an exemption from the requirement to submit a supplement. Additionally, the proposal would discuss FDA actions in response to manufacturer's submissions, corrective actions that FDA may take, and recordkeeping and reporting requirements.     

Open access to public documents – More secrecy,less transparency!

Prospects are grim for greater access to public documents. The recent initiatives of the Council of Europe to enact a new international convention on access to public documents and recent proposal by the European Commission to revise the law on public access would actually narrow the right of access. The proposed laws would allow governments and the EU Commission to increase its discretionary power to control the flow of information. The draft CoE Convention sets an overly-low standard and restricts information held in electronic databases if the information is not “easily retrievable” or does not “logically belong together”. Similarly, the proposed amendments to the EU Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents would exclude access to documents that do not appear on a register. This would give the EU Commission a wide discretion to share documents informally with a limited number of people, such as interest groups. The Commission's proposal would relieve the EU institutions of its current obligation to show concretely the harm that would occur as a result of disclosure when refusing access to documents. The new proposal has been criticised for subordinating transparency rules to data legislation. The proposals initiated under the Swedish leadership would be a step backwards for transparency.     

Regulations for in vivo radiopharmaceuticals used for diagnosis and monitoring--FDA. Proposed rule

The Food and Drug Administration (FDA), in response to the requirements of the Food and Drug Administration Modernization Act of 1997 (FDAMA), is proposing to amend the drug and biologics regulations by adding provisions that would clarify the evaluation and approval of in vivo radiopharmaceuticals used in the diagnosis or monitoring of diseases. The proposed regulations would describe certain types of indications for which FDA may approve diagnostic radiopharmaceuticals. The proposed rule also would include criteria that the agency would use to evaluate the safety and effectiveness of a diagnostic radiopharmaceutical under the Federal Food, Drug, and Cosmetic Act (the act) and the Public Health Service Act (the PHS Act.     

Medicaid program; Medicaid managed care--HCFA. Proposed rule

This proposed rule would amend the Medicaid regulations to allow the States greater flexibility by giving them the option to require Medicaid recipients to enroll in managed care entities without obtaining waivers. These revisions, which are authorized by the Balanced Budget Act of 1997, would establish new beneficiary protections in areas such as quality assurance, grievance rights, and coverage of emergency services. They would eliminate certain requirements viewed by State agencies as impediments to the growth of managed care programs, such as the enrollment composition requirement, the right to disenroll without cause at any time, and the prohibition against enrollee cost-sharing. They would also permit State agencies to amend their State plans to require enrollment in managed care organizations subject to certain conditions, including limits on whose enrollment can be mandated, and a requirement for beneficiary choice. In addition, this rule would extend most of these new requirements to prepaid health plans.     

Aligning the Interests of Lawyers and Clients

The potential conflict of interest between lawyers and clientsis well known. If a lawyer is paid for his time regardless ofthe outcome of the case, the lawyer may wish to bring the caseeven when it is not in the best interest of the client, mayspend more hours working on the case than the client would want,and may reject a settlement when the client would be betteroff if it were accepted. Alternatively, if the lawyer is compensatedaccording to the conventional contingent fee arrangement—underwhich he is paid a fraction of any trial award or settlementbut bears all of the cost of litigation—the lawyer mayhave an insufficient incentive to bring the case, may spendtoo little time working on it if it is brought, and may encouragea settlement when the client would be better off going to trial.In this article we propose a method of compensating lawyersthat overcomes the conflict of interest between the lawyer andthe client. Our system is a variation of the conventional contingentfee system, but, in contrast to that system, we would have thelawyer bear only a fraction of the cost of litigation—thesame fraction that the lawyer obtains of the award or settlement.We demonstrate that when the fraction of the cost that the lawyerbears equals the fraction of the award or settlement that heobtains, he will have an incentive to do exactly what a knowledgeableclient would want him to do with respect to accepting the case,spending time on the case, and settling the case. Under ourmodified contingent fee system, a third party would compensatethe lawyer for a certain fraction of his costs, in return forwhich the lawyer would pay that party an up-front fee. In thisway, the client would not bear any costs, even if the case werelost, just as under the conventional contingent fee system.     

保险受益权研究

保险受益权应界定为身故保险金的受领权,其主体可以是指定受益人和法定受益人,但不能是被保险人。被保险人与受益人同时遇难的,应推定受益人先死亡。受益人故意伤害或杀害被保险人的,应丧失受益权,但保险人不应因此而免责,对被保险人或其他受益人仍应承担保险责任。受益人为谋害被保险人恶意购买保单,嗣后故意谋杀被保险人的,保险人可解除合同,并对解约前被保险人的死亡不负给付保险金的责任。     

Sanctions applicable to letter of credit administration--Office of the Secretary, HHS. Proposed rule

We are proposing regulations that would govern the imposition of sanctions against recipient organizations holding letters of credit under programs administered by the Department of Health and Human Services. The regulations would describe the conditions which may prompt the imposition of sanctions and would establish uniform procedures for providing affected recipient organizations: (1) Adequate notice of the grounds upon which proposed sanctions are based, (2) an opportunity to respond to the factual and legal bases of the proposed sanctions, and (3) a reasoned decision that articulates the factual and legal bases of the Department's final decision. We believe that these uniform procedures would be useful both as a sound management tool for the Department and as a guide to grantees and contractors.