The Illinois HIV transmission statute: unconstitutionally vague or politically vogue?

This article does not challenge the prudence of enacting statutes criminalizing the transmission of the HIV virus. Instead, the author asks whether a particular statute, one already enacted in Illinois, is unconstitutionally vague because it does not give adequate warning to individuals that certain behavior is proscribed or because it is overbroad in that it prohibits constitutionally protected conduct. The author also offers a redrafted Illinois statute that she believes will pass constitutional muster.     

Notice regarding section 602 of the Veterans Health Care Act of 1992 rebate option--HRSA. Notice

Section 602 of Pub. L. 102-585, the "Veterans Health Care Act of 1992", enacted section 340B of the Public Health Service (PHS) Act, "Limitation on Prices of Drugs Purchased by Covered Entities." Section 340B provides that a manufacturer who sells covered outpatient drugs to eligible entities must sign a pharmaceutical pricing agreement with the Secretary of HHS in which the manufacturer agrees to charge a price for covered outpatient drugs that will not exceed that amount determined under a statutory formula. The purpose of this notice is to request comments on the proposal of a rebate option for State AIDS Drug Assistance Programs (ADAPs) receiving funds under Title XXVI of the PHS Act.     

The Effectiveness of Insider Trading Regulation in Italy. Evidence from Stock-Price Run-Ups Around Announcements of Corporate Control Transactions

All developed countries and most emerging countries restrict insider trading in the belief that it may undermine investors' confidence and the integrity of financial markets.Such regulation, however, has proved to be relatively ineffective almost everywhere, as shown by the records on convictions in the last few decades and by the pervasiveness of insider trading signalled by stock-price run-ups around announcements of private information.Identifying illegal insider transactions may be difficult: the private information must be material, i.e. price-sensitive, and in some countries prosecutors have to prove the use of such information by corporate insiders. Moreover, the investigative powers of the enforcing Authority may be weak and the deterrence of criminal sanctions may be diminished by lengthy proceedings, especially when alternatives, such as administrative fines and civil actions, do not exist.To date, the Italian legal system has experienced great difficulty in detecting and punishing illegal insider trading. Since they were first enacted in 1991, the insider trading rules have led to two convictions and to a very low ratio of prosecutions to allegations of illegal trading. Moreover, leakage of private information appears to be widespread, given that news about firm-specific events seems to be incorporated in stock prices long before it is disclosed in public announcements.This paper examines the effectiveness of Italian insider trading legislation by focusing, among other things, on the stock-price run-up around announcements of corporate events. In particular, after a brief survey of earlier research on legal and illegal insider trading and on the most important weaknesses in the Italian legal framework, standard event-study methodology is used to analyse stock-price run-ups around 29 announcements of corporate control transactions in the period 1998–2000. Indicators of the leakage of non-public material information are then constructed, showing that securities prices follow similar patterns regardless of whether insider trading is likely to have occurred. This evidence raises questions as to the efficacy of Italian insider trading regulation and the paper concludes with some suggestions as to how it could be improved.     

Constitutional law--New Jersey abortion statute unconstitutionally vague on its face

The old New Jersey abortion statute held that abortion before the quickening of the child was not indictable. The Young Women's Christian Association (YWCA) of Princeton, New Jersey, is a consolidation of 2 suits in the District Court questioning the constitutionality of the New Jersey statute. The court ruled that the women plaintiffs were without standing to raise the question of constitutionality. The court also ruled that because of the prosecutions for committing illegal abortions, the abortions, the physicians had a sufficient legal interest to argue that the statute deprives the physician of the right to practice medicine according to the highest standards of medical practice and violates the right to privacy of the patients.     

Determining the Finance Charge Under the Truth in Lending Act

Determination of the finance charge is central to the Truth in Lending disclosure scheme. The author analyzes difficulties encountered in drafting the finance charge provisions, judicial and administrative interpretations of the statutory provisions, and application of the concept to various types of transactions. He concludes that, despite imperfections in the statute and regulation, the present provisions are about the best that can be expected given the varieties of credit transactions and differences in state law provisions regulating such transactions.     

Notice regarding section 602 of the Veterans Health Care Act of 1992--rebate option--HRSA. Final notice

Section 602 of Pub. L. 102-585, the "Veterans Health Care Act of 1992", enacted section 340B of the Public Health Service (PHS) Act, "Limitation on Prices of Drugs Purchased by Covered Entities." Section 340B provides that a manufacturer who sells covered outpatient drugs to eligible entities must sign a pharmaceutical pricing agreement with the Secretary of HHS in which the manufacturer agrees to charge a price for covered outpatient drugs that will not exceed that amount determined under a statutory formula. The purpose of this notice is to inform interested parties of the final guidelines recognizing a rebate option for State AIDS Drug Assistance Programs (ADAPs) receiving funds under Title XXVI of the PHS Act as an optional alternate means of accessing section 340B discount pricing.     

Globalization and regulatory change: The interplay of laws and technologies in E-commerce in Southeast Asia

Electronic commerce has brought about business and technological changes globally, and these global changes have given rise to major legal reforms across nations. In the fast-changing global digital economy, states need strategies to maintain competitiveness of their markets while simultaneously ensuring the secure and effective use of technologies involved in conducting electronic transactions. This paper examines how the use and recognition of electronic signatures are regulated in Southeast Asia – the region that has shown the most significant growth in global e-commerce in past few years. Based on a comparative analysis of the laws of four representative ASEAN member states – namely Singapore, Thailand, Malaysia, and Vietnam, this paper argues that there is a regional trend towards adopting more liberal and technology-neutral standards for electronic signatures. Electronic signature regulation in Southeast Asia is now built upon limited technological neutrality (or the so-called “two-tiered” approach) as a shared regulatory understanding, but this approach is operationalized differently in each state due to distinctive national contexts. Within the common legal framework, each state has developed its own system of control and management with respect to higher-level signatures (using advanced technologies). The principle of technological neutrality, a concept originally developed for the regulation of technologies in response to the liberalization of telecommunications market, has been the central theme of discussions on the e-transactions policy-making scene. As the author shows, in the process through which states localize the global standards of technological neutrality, ASEAN as a vehicle of regulatory change has played an essential role in translating this principle to the national context.     

Adding constitutional depravation to untimely death: South Dakota's living will pregnancy provision

In 1991, the South Dakota Legislature enacted a living will statute. Included is a pregnancy provision that prevents pregnant women from obtaining the full benefit of the statute. A South Dakota Attorney General's opinion was released discussing the conflict of laws problems posed by the statute. That opinion, however, did not address the more important question of the constitutionality of the pregnancy provision. This comment analyzes the pregnancy provision under the Due Process, Equal Protection, and the Establishment Clauses and concludes that South Dakota's pregnancy provision is unconstitutional under all three doctrines.     

The Internet gambling conundrum: Extraterritorial impacts of U.S. laws on Internet businesses

Internet gambling is a significant commercial activity that has been successfully adapted to the online environment. The geographical transcendence of the Internet presents challenges for government regulation, which varies considerably. U.S. patrons have historically provided a significant portion of the Internet gaming market, despite a dubious legal status. The Unlawful Internet Gambling Enforcement Act (UIGEA) enacted in October 2006 clarifies the legal status otherwise imposed by state law by prescribing felony criminal status to the Act of receiving an Internet wager from a jurisdiction where such wagering is illegal. This article provides an analysis of the UIGEA and its effects on Internet gambling firms, as well as related businesses. Despite targeting gambling firms, this legislation may also assist in the prosecution of other firms through aiding and abetting liability. UIGEA also targets financial services providers, requiring additional safeguards to stop unlawful transactions destined for Internet gaming sites. Financial markets suggest that this legislation has reduced Internet gambling in publicly traded firms. However, the bill may also have the effect of enhancing investment capital flows for online gambling firms, due to clarification of the legal status for firms who are not targeting U.S. residents in violation of UIGEA. The ultimate result may depend on whether other nations follow suit in targeting extraterritorial business with domestic gambling patrons.     

Establishment of revisit user fee program for Medicare survey and certification activities. Final rule

This final rule will establish a system of revisit user fees applicable to health care facilities that have been cited for deficiencies during initial certification, recertification, or substantiated complaint surveys and require a revisit to confirm that corrections to previously-identified deficiencies have been remedied. Consistent with the President's long-term goal to promote quality of health care and to cut the deficit in half by fiscal year (FY) 2009, the FY 2007 Department of Health and Human Services' (HHS) budget request included both new mandatory savings proposals and a requirement that user fees be applied to health care providers that have failed to comply with Federal quality of care requirements. The "Revisit User Fees" will affect only those providers or suppliers for which a revisit is required to confirm that previously-identified failures to meet federal quality of care requirements have been remedied. The fees are estimated at $37.3 million annually and will recover the costs associated with the Medicare Survey and Certification program's revisit surveys. The fees will take effect on the date of publication of the final rule and will be in effect until the date that the continued authority provided by Congress expires. At the time of publication of this regulation the applicable date is September 30, 2007. If no legislation is enacted, the fees are not retroactive to the beginning of the fiscal year. Any provider or supplier that has a revisit survey conducted on or after the date of publication will be assessed a revisit user fee and will be notified of the assessment upon data system reconciliation which can occur following the closing of the fiscal year. The fees will be available to CMS until expended. The revisit user fee is included in the President's proposed FY 2008 budget. We note through the publication of this final rule that if authority for the revisit user fee is continued, we will use the current fee schedule in this rule for the assessment of such fees until such time as a new fee schedule notice is proposed and published in final form.     

Sexual abuse by psychotherapists: the call for a uniform criminal statute.

Recent surveys show an alarming rate of sexual exploitation of patients by psychotherapists. As such conduct often falls outside the scope of rape, which allows a defense of consent, the psychotherapist is not prosecuted. Although all sexual contact between therapist and patient is prohibited by codes of professional ethics, the licensing boards that enforce these codes do not possess adequate power to deter this behavior. Further, professional review boards have absolutely no authority over unlicensed therapists who sexually abuse their patients. As a result, licensed therapists who have been censured in one state may practice as unlicensed therapists in another state and continue to sexually abuse patients. The only effective deterrent would be a uniform statute, adopted in all states, criminalizing this specific abuse of the unique therapist-patient relationship. Such a statute should include unlicensed therapists as potential offenders and consent to sexual contact should not be a defense. The statute also should provide for enhanced efforts to inform and protect victims. This Note first examines six of the nine criminal statutes that currently exist in order to show the full range of provisions presently in force to deter this conduct. This Note then proposes model provisions for a uniform statute.     

The new ASC safe harbor: the triumph of public policy over legal consistency

This Article traces the history of the OIG's use of safe harbors to allow certain activities that arguably violate a literal reading of the Anti-Kickback Statute. The author focuses particular attention upon the development of the ASC Safe Harbor from its genesis through its final issuance on November 19, 1999. The analysis finds legal inconsistency in the regulation in this area, which it attributes to the development of the ASC Safe Harbor being driven primarily by nonlegal, public policy concerns. The Article concludes by suggesting that OIG publicly embrace those policy goals and adopt broader investment-related safe harbors that focus on limiting returns to those attainable in a "fair market."     

Fleeting fame under the Trademark Dilution Revision Act of 2006

Legal context: When Congress enacted the Federal Trademark Dilution Act in1996, it intended to create a uniform federal cause of actionfor trade mark dilution. Unfortunately, the statutory languageselected by Congress created certain ambiguities, includinghow famous a trade mark had to be to merit dilution protectionunder the statute. Confusion developed as to whether a markmerely needed renown in a limited geographic area or industry—aconcept that became known as ‘niche fame’—orwhether it needed national renown to qualify as a ‘famousmark’. Key points: In 2006, Congress enacted the Trademark Dilution Revision Actand therein provided a concrete definition for a famous markthat ostensibly removed the ability to qualify for dilutionrelief where the mark was famous only within a particular niche.It was uncertain how courts that had previously favoured theniche fame theory would apply Congress's new definition. However,a district court in the Ninth Circuit, one of the strongestproponents of niche fame, recently held that niche fame is nolonger a viable theory under the Lanham Act or California statelaw as a result of the 2006 amendment. Practical significance: This decision portends that courts will fall in line with Congress'samendment and will deny dilution relief under federal law toparties whose marks are famous only in a particular geographicarea or industry. Additionally, the decision provides some guidanceand predictability as to how states may interpret the viabilityof niche fame under their respective dilution statutes in lightof Congress's 2006 amendment.     

Notice regarding HRSA grant requirement--participation in the 340B drug pricing program--HRSA. Notice

Section 602 of Public Law 102-585, the "Veterans Health Care Act of 1992," enacted section 340B of the Public Health Service (PHS) Act, "Limitation on Prices of Drugs Purchased by Covered Entities." Section 340B provides that a manufacturer who sells covered outpatient drugs to eligible entities must sign a pharmaceutical pricing agreement with the Secretary of HHS in which the manufacturer agrees to charge a price for covered outpatient drugs that will not exceed that amount determined under a statutory formula. The purpose of this notice is to request comments on a proposed grant award requirement in which all entities, except those entities which fall within excepted categories, that receive HRSA grants listed in section 340B(a)(4) and that purchase or reimburse for covered outpatient drugs must participate in the 340B Drug Pricing Program, or demonstrate good cause for nonparticipation. When the Prime Vendor program is operational, HRSA intends to publish a second Federal Register notice proposing an expansion of the grant award requirement to include participation in the Prime Vendor Program.     

Nondiscrimination on the basis of age in programs or activities receiving federal financial assistance from HHS. Final rules

These final regulations implement provisions of the Age Discrimination Act of 1975, and the general, governmentwide regulation published in the Federal Register on June 12, 1979, codified at 45 CFR Part 90. The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance. The Act also contains certain exceptions that permit, under limited circumstances, use of age distinctions or factors other than age that may have a disproportionate effect on the basis of age. The Act applies to persons of all ages. These final regulations are designed to guide the actions of recipients of financial assistance from HHS. The regulations incorporate the basic standards for determining what is age discrimination that were set forth in the general regulations. They discuss the responsibilities of HHS recipients and the investigations, conciliation and enforcement procedures HHS will use to ensure compliance with the Act.     

Let's Make a Brand New Start of it in Old New York: Using Mediation to Resolve Open Adoption Disputes

There is no general consensus of how to handle disputes arising from open adoption agreements. Some states have statutes mandating mediation, but New York does not. This Note proposes that New York enact a statute that mandates adoptive and birth parents use mediation for disputes arising from open adoption agreements. The proposed statute provides a comprehensive approach to mediation by setting forth when mediation is appropriate and when it is not. The statute will also provide when the child's preference can be taken into consideration, and who will pay for mediation.     

关于刑法溯及力的两个问题

我国刑法应支持建立溯及力可及于已生效判决的制度,即对"新法认为无罪且刑罚未执行完毕"的案件,即使已经作出生效裁判,仍然应当予以释放,不再执行;对由"罪重变为罪轻"的案件,只要还处在原判刑罚的执行过程中,也应允许依照新法予以改判。此外,刑罚溯及力中的"从轻"应理解为"最有利被告",当不同的有利被告人的情形分别出现于新旧刑法中时,应可以分别适用新旧刑法的有关规定,在行为时法和裁判时法之间存在中间法时,如中间法最轻,应适用中间法。     

PROTECTING VICTIMS OF DOMESTIC VIOLENCE AND THEIR CHILDREN AFTER DIVORCE

This article discusses the issue of domestic violence in the postdivorce context and how abused women who have children with their abusers are at a particular high risk of becoming victims of this phenomenon. It discusses recent state legislation that has been enacted to deal with the problems of domestic abuse after divorce. More specifically, this article looks at the American Law Institute's proposed model statute on child custody and visitation and how it addresses the issue of domestic violence both during and after divorce. This article will also explore potential flaws of the American Law Institute's model as well as some ideas for further development in this area .     

Community participation in the certificate-of-need process: a look at ten-taxpayer groups in Massachusetts

Certificate-of-need statutes give designated state agencies veto power over investment in health care facilities. Some states have sought to temper the arbitrary character of this power by expanding the opportunities for community input into the certificate-of-need process. Massachusetts, for example, has enacted a statute that allows groups of ten taxpayers to petition for a public hearing on any certificate-of-need application. Some observers question whether the benefits of taxpayer-group participation are substantial enough to compensate for the delays and abuses that the statute allegedly invites. To help resolve this question, this Comment examines historical data on Massachusetts taxpayer groups and on their activities and assesses the significance of their composition and tactics to the certificate-of-need process. Although flaws exist in the Massachusetts ten-taxpayer mechanism, in this writer's view it has succeeded partially in making the certificate-of-need process responsive to community opinion. Many groups lack the skills and qualities needed to make constructive use of the ten-taxpayer mechanism. Nevertheless, it serves a valuable purpose by creating a public forum for and by encouraging public participation in the certificate-of-need process, especially by those who might otherwise try to circumvent that process through use of special legislation, of private pressure, or of other similar means.     

Medicare and state health care programs: fraud and abuse; safe harbors for protecting health plans--HHS. Interim final rule with request for comment

In accordance with section 14 of the Medicare and Medicaid Patient and Program Protection Act of 1987, this interim final rule establishes two new safe harbors and amends one existing safe harbor to provide protection for certain health care plans, such as health maintenance organizations and preferred provider organizations. The first new provision protects certain incentives to enrollees (including waiver of coinsurance and deductible amounts) paid by health care plans. The second new provision protects certain negotiated price reduction agreements between health care plans and contract health care providers. Finally, an existing safe harbor has been amended to protect certain agreements entered into between hospitals and Medicare SELECT insurers. These safe harbors specifically set forth various standards and guidelines that, if met, will result in the particular arrangement being protected from criminal prosecution or civil sanctions under the anti-kickback provisions of the statute.