Entitled "Turmoil in the U.S. Credit Markets," the conference focus was on issues such as the advisability of legislative or regulatory reform to stabilize the housing market and recent congressional efforts to tighten regulations on credit card companies.

Zywicki participated in a panel on Credit Card Regulation, along with three other experts with government, legal, and academic backgrounds. 

The article's author maintains that in order to ensure valid scientific testimony, courts should have multiple labs evaluate evidence. He postulates, too, that the root of reform requires rethinking the adversarial aspects of the legal system.

"The adversarial system is premised on the theory that if you have two liars testifying, the truth will come out," says Bernstein, who in his forthcoming article offers a critique of what he refers to as "connoisseur testimony" in which weight is given to witness credentials, as opposed to concrete scientific evidence.

An Expert? Prove it, Forbes, June 2, 2008. By William Baldwin.

Excerpt:
"Lawyers and scientists have completely different ways of discovering truth. The lawyers' way is dueling witnesses.

"This is as good as any in determining which of two people is lying about a police shootout. It is no good in determining whether a hair sample matches that of the murder defendant or whether Vioxx caused a heart attack. Do heavy objects fall faster than light ones? Scientists answer with an experiment. A court would answer by having the jury hear from two experts, one saying yes, the other saying no. It would make as much sense to have the jury watch a medieval jousting contest between the two witnesses. 'The adversarial system is premised on the theory that if you have two liars testifying, the truth will come out,' says David Bernstein, a professor at George Mason University. In a forthcoming article for the Iowa Law Review, he critiques what he calls 'connoisseur testimony.' A witness says that X causes Y and backs up the statement not with an objective test but with his diplomas and his years of experience. You could use connoisseur testimony to convict someone of witchcraft. Asbestos plaintiffs claim to have spots on their lungs. Do they? A recent report by the Manhattan Institute notes that plaintiff physicians find abnormalities in 95.9% of X rays; nonaligned radiologists find them in 4.5%. Here's a radical thought on how to get at the truth. Take 50 supposedly abnormal films and shuffle them with 50 taken from people never exposed to asbestos but matched in sex, age and smoking habits. Now ask the plaintiffs' expert to pick out the abnormal ones. A witness for the prosecution testifies that he can match hair samples with 98% accuracy? Forget the credentials. The judge should make him pass a blind test. It won't happen. When it comes to science, judges are steeped in a long tradition of welcoming junk into the courtroom."

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Cohen told Newsweek, "If you pay people for something, they will provide more of it." He is a long-standing advocate of a market approach to organ donation and believes that those on long wait lists for transplants would benefit.

Under current U.S. law, individuals are prohibited from buying or selling human organs, despite the large number of people awaiting transplants, many of whom will die or become too sick to qualify for a transplant long before an organ becomes available to them.

Are Kidneys a Commodity? Newsweek, May 26, 2008. By Jerry Adler.

Excerpt:
"Cohen is a professor of law at George Mason University who for two decades has been fighting for the right to sell off his major organs--or to buy one from someone else, should he need it. These are practices currently prohibited by U.S. law, and widely reviled by doctors, who like to believe they occupy one of the last bastions of selfless altruism in the American economy. Last week Cohen took his case to Intelligence Squared U.S. (IQ2), the Oxford-style debating society with a fondness for provocative libertarian issues, such as legalizing a market for human organs. Cohen has made his case at length in articles and books, but he can summarize it in a dozen words: 'If you pay people for something, they will provide more of it.' This, he says, is as true of body parts as anything else.

"How far is Cohen willing to push this argument? Well, he's publicized a codicil to his will that forbids his survivors from donating his organs for transplant, except to relatives, or if some third party, such as an insurance company, pays for them. At a minimum, he'd like to legalize such arrangements, so anyone could contract to sell his or her organs after death for the benefit of survivors."

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Verret argues that government control of one's mailbox amounts to a "regulatory monopoly on mail delivery," with the only justification for that being an industry that is a natural monopoly, a term used by economists to describe a situation in which it is cheaper to have one provider due to high up-front costs. Given the success of FedEx and UPS, Verret disputes that argument and poses a unique solution to the issue of privacy rights in mail delivery.

Wait a minute, Mr. Postman, Chicago Tribune, May 18, 2008. By J.W. Verret.

Excerpt:
"Let me anticipate one objection: privacy rights. Critics would question how mailbox owners could limit unwanted access or junk mail. One answer is to let the address holder choose. There could be a default rule of the status quo, no access to anyone but the Postal Service, unless an address holder specifically opted out and permitted another party access to his or her mailbox.

"For instance, consider the effectiveness of the federal do-not-call program, a rare jewel of bureaucratic ingenuity. An agency, such as the Federal Trade Commission, could administer an opt-in program for mailbox access.

"Address holders would sign authorization forms, on paper or online, allowing companies registered with the FTC, let's call them Registered Federal Mail Affiliates (or RFMAs, bureaucrats love acronyms) to access their mailboxes.

"RFMAs delivering to unregistered addresses would be subject to fines, and non-RFMAs accessing mailboxes would still face the penalty of mail-tampering laws.

"Competition would improve the quality and pricing of Postal Service. Competition might even urge the Postal Service to implement delivery charges based on distance."

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Professor Ilya Somin explains that California voters should not fall for the efforts of pro-condemnation interests to convince them approval of Proposition 99 will protect them against eminent domain actions. In fact says Somin, the approval of the ballot initiative would offer almost no protection of that kind. 

Proposition 99, says Somin, protects only owner-occupied residences against condemnations with the purpose of transferring property to "private persons," while leaving California's 42% of households currently renting a residence without protection. Owners of farms, small businesses, and homeowners who have lived in their residences for less than one year also would remain at risk. In addition, language in the initiative could be used by government officials to circumvent the intent in order to favor those seeking condemnation, Somin fears. 

Californians would be better served by a vote for Proposition 98, which Somin believes "really would forbid 'economic development' condemnations and other abuses."

Don't count on Prop. 99, Los Angeles Times, May 19, 2008. by Ilya Somin.

Excerpt:
"Economic development and blight takings often transfer property from the poor and politically weak to the politically powerful. Since World War II, from 3 million to 4 million Americans have lost their homes to such condemnations.

"Many of the eminent domain laws passed since Kelo -- including California's 2006 law -- are likely to be ineffective. Legislators have passed bills that only appear to protect property rights. The most common allow economic development condemnations under the guise of alleviating blight, which many states define so broadly that almost any neighborhood qualifies, as in the dubious La Puente case.

"An August 2007 survey by the Saint Consulting Group found that only 21% of Americans know whether their state has enacted eminent domain reform legislation since Kelo, and only 13% know whether that legislation is likely to be effective. Proposition 99 is a particularly skillful attempt to exploit political ignorance to block effective eminent domain reform. Californians shouldn't fall for it."

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Lawmakers can keep ties to stocks secret, The Dallas Morning News, May 16, 2008. By Dave Michaels.

Excerpt:
"Under Senate rules, Ms. Hutchison can vote on matters affecting Exxon because personal investments generally don't constitute a conflict of interest. Yet for officials in the judicial and executive branches, they can.

"Under federal law, judges must disqualify themselves if they have 'a financial interest' in a matter before them or 'in a party to the proceeding.'

"Mr. Alito sat out the Exxon Valdez oil-spill case without saying why. Most justices don't state their reasons for such decisions, but the law that guides them is quite clear.

"'Congress decided we ought to have a nice, bright-line rule,' said Ronald D. Rotunda, a law professor at George Mason University and expert in legal ethics. 'The rule in the federal statute says that if you own even one share in a company, you must disqualify yourself.'

"Some experts say different rules apply to lawmakers because legislative policy is general in nature, whereas judges and federal agencies often decide matters that affect only a few parties.

"If lawmakers were forced to recuse themselves over stocks, they might make very few votes, said Fred Wertheimer, president of Democracy 21, a nonpartisan group devoted to campaign finance and political ethics.

"Senate rules generally trust that senators act in the public interest, even if they have a financial stake in legislation, said Wilson R. Abney, a former staff director of the Senate Ethics Committee. A senator's personal finances are generally considered irrelevant unless there is proof that a legislator's action was motivated by personal enrichment.

"'The Senate rule is not necessarily as broad as the concept of a conflict of interest,' Mr. Abney said. 'A conflict of interest exists any time an official has a financial interest in the decision he's making.'

"The rules are tighter for executive-branch officials, who can't write regulations if they own stock worth more than $25,000 in an affected company.

"'Members have, in effect, created tougher rules for the executive branch than they have for themselves,' Mr. Wertheimer said. 'The circumstances are different, so there is a justification for it. But there probably is not a justification for the complete laxness of those [Senate] rules.'"

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Rotunda's comments were carried in an article examining the problems created by judicial recusals, specifically in the case American Isuzu Motors v. Ntsebeza in which the high court was unable to reach a quorum due to the recusals of four justices, three of which are presumed to be over stock ownership. The high court's inability to hear the case resulted in affirmation of the lower court's ruling and precluded the defendants' ability to appeal.

Companies Rebuffed by High Court on Apartheid Suits (Update1), Bloomberg.com, May 13, 2008. By Greg Stohr.

Excerpt:
"The lower court ruling left open the possibility that the companies ultimately could win dismissal on different grounds. The three-judge panel didn't rule on the companies' contention that the case raises political issues better suited to resolution outside the courtroom. The appeals court said the companies should press those arguments first at the trial court level.

"The high court's action today upheld the 2nd Circuit's ruling. Under federal law, when the justices don't have a quorum and aren't likely to obtain one, the Supreme Court's members who can participate are required to affirm the lower court ruling. Unlike most high court rulings, today's decision doesn't set a nationwide precedent.

"'We are disappointed that recusals made the court unable to hear the case and correct the 2nd Circuit majority's clear legal errors,' the companies' lead lawyer, Francis Barron, said in an e-mailed statement.

"One of the lawyers pressing the suit, Michael Hausfeld, said in a statement that 'we are pleased with the court's decision and will do all we possibly can to bring justice to the victims of the horrific apartheid regime.'

"Many Recusals

"The stock holdings of the justices have come into play repeatedly in their current term. Roberts, a Pfizer Inc. shareholder, didn't take part when the court considered patients' lawsuits against drugmakers. In March the court announced it was divided 4-4, leaving intact a ruling allowing suits against Pfizer over its Rezulin diabetes drug.

"Days earlier, only eight justices considered Exxon's bid to overturn a $2.5 billion punitive damage award stemming from the 1989 Valdez oil spill. Alito, an Exxon shareholder, isn't taking part in the case, which the court will resolve by July.

"'There is a problem with judges getting into situations where they have to recuse themselves,' said Ronald Rotunda, an expert on judicial ethics at George Mason University's law school in Fairfax, Virginia. 'I think the answer is they ought to sell the stock and buy mutual funds.'''

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Professor Alvaré teaches family law at the School of Law and is a Consultor to Pope Benedict XVI's Pontifical Council of the Laity, which is made up of 36 Members and 20 Consultors and functions as an advisory body for the pope on matters concerning non-clerical persons.

EWTN, in its 26th year, is the largest religious media network in the world, bringing 24-hour programming to 140 countries in both English and Spanish. Its aim is to provide family and religious content from a Catholic point of view, and it features programs such as exclusive interviews, investigative reports, live coverage of special events, and cultural news.

View The World Over program library (May 9 interview to be posted shortly)

Pointing out that two primary reasons for these defections are high salaries for each year played and the fear that injury during the college years might trump opportunity, Hazlett and Wright propose that schools should extend broader insurance coverage to these athletes, allowing them to hedge their exposure during their time on the college courts.

Hell no, don't let them go! Chicago Tribune, May 8, 2008. By Thomas W. Hazlett and Joshua D. Wright.

Excerpt:
"Many call for an end to this 'college' charade. Proposals include urging the NBA to restore its old rule, drafting high schoolers, or going back to the old-old rule, waiting to draft until four years after high school. But the NBA is unlikely to be moved: This isn't the NBA's problem. Our suggestion is to attack the problem at the college level, where the sport is left twisting in the wind.

"First, we note a standard economic problem. Players jump to the NBA because prices (wages) tell them that that is where they are valued. But those price signals are wrong. The college game delivers as much or more excitement, pound for pound, as the pros. What mucks up the system is the NCAA cartel, which restricts payments to college players. The universities maintain that students are amateurs and that it would violate ethics to pay them cash money. This recalls the elitist tripe that the International Olympic Committee maintained for a century, a laughable lie that fell soon after the collapse of Soviet communism—a provocative correlation we'll leave to historians.

"Second, we posit that there are two reasons that freshman stars are so likely to leave college early. One is that NBA salaries are high, and that each year a player waits to cash in is one very rich year they lose. Until the NCAA cartel is smashed, that problem is beyond our solution. But the second motive is to mitigate risk. One clumsy leap and a $7.6 million guaranteed contract—the expected price tag for this year's 12th NBA pick—goes poof! And, as financial economists will tell you, that first $7.6 million is probably more important to you than the next.

"So the answer, given that universities cannot pay athletes market wages, is to at least insure them. Were underclassmen to be appraised, via draft rankings, and then offered compensation in the event—post-graduation—they slipped by some increment, they could hedge this very considerable exposure. The NCAA allows players to insure, but the player pays even though it is largely the university (and its fans) that benefits. Moreover, policies can only insure against career-ending injuries, leaving the more common outcomes—less serious injuries and performance-related changes in draft status—terrifying prospects.

"The schools should extend broader coverage. The contracts we propose do not fully compensate college athletes for their valuable service, and would thus retain only some of the talent now jumping early to the pros. Yet, the approach would preserve the NCAA's 'amateur' wink, while allowing student-athletes to play college ball until their 21st birthday without risking the family jewels. A slam dunk, really."

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Chairs of the Justice Advisory Committee are Theodore B. Olson, former solicitor general of the United States, and U.S. Senator Sam Brownback of Kansas. In addition to Rotunda, the Steering Committee consists of an impressive lineup of legislators, academics, and senior U.S. government officials.

View press release 

Rotunda's comments were aimed at the upcoming bench trial of a real estate appraiser for felony forgery. Six of 11 local Superior Court judges have recused themselves from hearing the trial of Ashby Krouse, who also is the son-in-law of a former Georgia state senator. Judge J. Carlyle Overstreet is scheduled to hear the case later in May, despite criticism surrounding the issue of membership in the Augusta Country Club by the judge and the principals in the case.

"Somebody will lose in this, and people will make the claim that 'Oh, you did that for him or for the country club,' and we'd like to avoid that," Rotunda told the Augusta, Georgia, Metro Spirit. "They should bring in someone from out of the area," he said. "In cases where a whole bunch of judges recuse themselves, you just bring a judge in from outside, somebody who will say, 'This country club means nothing to me,' and just rules on the merits of the case."

Conflicted trial, Metro Spirit, May 7, 2008. By Murfee Faulk.

Excerpt:
"A nationally recognized expert in judicial ethics says an upcoming bench trial in Richmond County raises red flags for a possible conflict of interest and the appearance of impropriety.

"Ronald D. Rotunda, professor of law at George Mason University, told Metro Spirit that a judge 'should recuse himself' from a trial in which he, the defendant and victim are all members of the same local club.

"Those dynamics match the upcoming trial of Ashby Krouse, a local real estate appraiser whose bench trial for felony forgery is on Judge J. Carlyle Overstreet's docket for later this month. A precise date has not been set.

"Krouse, Overstreet and the alleged victim, William G. Hatcher, are all members of the Augusta Country Club.

"Six of 11 local Superior Court judges have recused themselves from hearing the Krouse trial, in which the defendant is the son-in-law of former state Sen. Don Cheeks.

"'I would not want to be a judge in the case where I was in the same club with the other parties,' said Rotunda. 'I would recuse myself.'

"Rotunda has written extensively on professional ethics. His work has been cited in numerous U.S. Supreme Court decisions. He was ranked 17th in a 2000 University of Chicago study that ranked the influence and reputations of lawyers nationwide."

Read the article.

An op-ed co-written by the two and appearing in The Orlando Sentinel, The Kansas City Star, and the Birmingham News points out that the Supreme Court's ruling in Kelo v. City of New London gives government broad powers in forcing transfers of private property, in many cases owned by low-income minorities, to commercial interests for the purpose of "economic development." Citing cases in which they believe government has used economic development through declarations of blight and urban renewal to unjustly victimize minorities and the poor, the authors argue that takings are, in fact, a constitutional issue for those affected.

Shared roots of property, civil rights, The Orlando Sentinel, April 28, 2008. By David T. Beito and Ilya Somin.

Excerpt:
"The fact is that eminent-domain abuse is a crucial constitutional-rights issue. On Tuesday, the Alabama Advisory Committee of the U.S. Commission on Civil Rights will hold a public forum at Birmingham's historic 16th Street Baptist church to address ongoing property seizures in the state. The church was not only a center of early civil-rights action, but also, tragically, where four school girls lost their lives in a bombing in 1963.

"Current eminent-domain horror stories in the South and elsewhere are not hard to find. At this writing, for example, the city of Clarksville, Tenn., is giving itself authority to seize more than 1,000 homes, businesses and churches and then resell much of the land to developers. Many who reside there are black, live on fixed incomes, and own well-maintained Victorian homes. At a City Council meeting earlier this month that overflowed with protesters from the neighborhood, local resident Virginia Hatcher charged that that the threat of forcing 'people from their homesteads of many years' through 'underhanded political manipulation' was not only 'un-Christian' but had created a climate of fear.

"Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn't notice until the U.S. Supreme Court's 2005 ruling in Kelo v. City of New London. In Kelo, the court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of 'economic development.' The Fifth Amendment requires that such seizures be for a 'public use,' but that requirement can be satisfied, the court ruled, by virtually any claim of some sort of public benefit. Many charge that Kelo gives governments a blank check to redistribute land from the poor and middle class to the wealthy. Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that '[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged.' Unfettered eminent-domain authority, the NAACP concluded, is a 'license for government to coerce individuals on behalf of society's strongest interests.'

"Some earlier civil-rights champions, by contrast, often ignored, or worse helped to undermine, the rights of property owners. Ironically, the same U.S. Supreme Court that handed down Brown v. Board of Education in 1954 also issued Berman v. Parker, in which the court allowed the District of Columbia to forcibly expel some 5,000 low-income African-Americans from their homes in order to facilitate 'urban renewal.' It was Berman that enabled the massive urban-renewal condemnations of later decades, which many critics dubbed 'Negro removal' because they too tended to target African-Americans.

"Four years ago, the city of Alabaster, Ala., used 'blight' as a pretext to take 400 acres of rural property, much of it owned by low-income blacks, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than 15 miles away. Several of the land owners, particularly those who lacked political clout and legal aid, ended up selling out at a discount."

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Miranda Y. Jones (3D) was selected by the Burton Foundation as one of the top 15 writers from law schools nationwide to receive the 2008 Burton Award. Jones was nominated by Mason Law Dean Daniel Polsby for her article entitled, "Permanent Injunction, A Remedy By Any Other Name Is Patently Not The Same: How Ebay v. Mercexchange Affects The Patent Right of Non-Practicing Entities."

Jones has been invited to attend an awards presentation to be held on June 16 at the Library of Congress that features Bill Press, former co-host of Crossfire, as master of ceremonies. Associate Justice Stephen Breyer will be the guest speaker at the event, whose theme is "A Tribute to the Democratic Process."

Founded in 1999, the Burton Awards program is run in association with the Library of Congress and its Law Library. The award's purpose is to reward effective and clear legal writing by honoring partners in law firms and law students who exemplify this practice by setting high standards for others to follow. Nominations are made by law school deans and managing partners of the 1000 largest U.S. law firms.

The plan, which calls for airlines to collect fingerprints from aliens at the time of their departure from the U.S., follows the earlier implementation of the US-VISIT program, which takes fingerprints and photographs from aliens entering the U.S. The proposed exit system would allow immigration officials to match prints against those taken on entry to find out who has not left the U.S. on time.

Sales points out that Congress has called for exit controls since the 1990s and that many other countries have made successful use of such controls for years. Congress has a hard deadline of August 3, 2008, to establish a biometric exit system, based on 2007 legislation.

Exit Stage Right, National Review Online, April 24, 2008. By Nathan A. Sales.

Excerpt:
"The main value of exit is related to immigration" the ability to verify that guests don't overstay their welcome. Federal immigration officers can use exit data to track down violators who are still in the country and have them deported. Less direct enforcement is possible, too. State and local police can use exit data to check whether an alien pulled over for a traffic stop is out of status. And if border officials know a particular visitor previously overstayed, they can bar him from entering if he later tries to return to the U.S.

"While exit is largely about immigration, it also has national security-advantages. According to the 9/11 Commission, four of the September 11 hijackers — including Mohamed Atta, the plot's operational ringleader — had overstayed in the past. Hijacker Ziad Jarrah was an overstay when a Maryland state trooper gave him a speeding ticket just two days before the attacks. With an exit system, border officials could have turned away some of the hijackers when they subsequently tried to reenter the U.S. And police could have taken Jarrah into custody after a garden variety traffic stop.

"Why is DHS asking airlines to gather departure information on its behalf? The short answer is: Because they already do so. Right now, airlines are responsible for collecting biographic data about departing aliens — names, passport numbers, and the like — and transmitting it to DHS. The administration proposal simply adds another type of information to the list "fingerprints, a more reliable data point for matching entry and exit records.

"The longer answer is: Because there's no other way to run exit effectively. Taking fingerprints at the TSA security checkpoint would distract already overburdened screeners from their job of keeping weapons off planes. And allowing aliens to check out at out-of-the-way airport kiosks " which DHS tried in an early exit pilot "virtually guarantees low passenger compliance."

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The Pontifical Council of the Laity is made up of 36 Members and 20 Consultors and functions as an advisory body for the pope on matters concerning non-clerical persons. Members of the Council consist of eight cardinals, three bishops, and 25 lay persons. Consultors include four bishops, six priests, and ten lay persons. The next Plenary Assembly of the Council will take place in November 2008 in Rome.

Professor Alvaré received her law degree at Cornell University in 1984 and a master's degree in systematic theology from The Catholic University of America in 1989. After practicing with the Philadelphia law firm of Stradley, Ronon, Stevens & Young, specializing in commercial litigation and free exercise of religion matters, Professor Alvaré worked for three years at the Office of General Counsel for the National Conference of Catholic Bishops, where she drafted amicus briefs in leading U.S. Supreme Court cases concerning abortion, euthanasia and the Establishment Clause. For the next ten years, she worked with the Secretariat for Pro-Life Activities at the NCCB. There, she lobbied, testified before federal congressional committees, addressed university audiences, and appeared on hundreds of television and radio programs on behalf of the U.S. Catholic bishops. She also assisted the Holy See on matters concerning women, marriage and the family, and respect for human life.

Professor Alvaré chaired the commission investigating clerical abuse in the Archdiocese of Philadelphia, and remains a consultant to the U.S. bishops marriage committee as well as an ABC News consultant. Her scholarship regularly treats current controversies about marriage, parenting, and the new reproductive technologies.

"A Yahoo-Microsoft merger would primarily be designed to attack Google," said Hazlett.

Microsoft offered in January to buy Yahoo in a $42 billion deal rejected by Yahoo as being too low. Instead Yahoo has being looking for partners with whom to stave off Microsoft's attempts at a takeover. Yahoo's announcement last week of a test to outsource advertising to Google raised concerns in Congress and elsewhere that cooperation between the two companies could harm competition.

Yahoo-Google Alliance could bring antitrust scrutiny, The International Herald Tribune, April 14, 2008. By Diane Bartz.

Excerpt:
"Yahoo's attempt to form an alliance with Google to stave off Microsoft could run into more trouble with antitrust regulators that Microsoft's unwelcome takeover bid.

"While Yahoo is seeking a business partnership with Googe - unlike the outright merger that Microsoft wants - legal experts say any deal between the world's two largest Internet search services would draw heavy scrutiny from U.S. and European competition regulators.

"'The Justice Department would certainly want to take a serious look at that because it would mean that a firm that would want to take advertisements or to place advertisements would have only one place to go,' said Aaron Edlin, who teaches law and economics at the University of California, Berkeley.

"In recent years, Web search services have taken over from once-popular portals or home pages, like AOL, MSN or Yahoo's own home page, as the primary starting point for many consumers seeking information on the Internet.

"Google held a 59.2 percent share of the U.S. Web search market in February, compared with Yahoo's 21.6 percent and Microsoft's 9.6 percent, the research company comScore said."

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.

McCabe and Inglis tested how applying the two cost-shifting measures affected agreement in staged pretrial settlements. McCabe remarked that "our studies suggest those types of changes to the law are overrated and that we won't see much of an effect."

"So far in the lab what we're finding is that probably the most important changes to the law are the changes that overcome the breakdowns when people meet face to face," McCabe said. "I don't think changes to the process itself will have dramatic improvements. It's just wishful thinking and special-interest thinking."

McCabe will present these and other results from related work at the Economics Institutes for Judges program at the Brookings Institution in Washington, DC, this spring.

Tort Reform's Human Touch, ABA Journal, April 2008. By Jenny B. Davis.

Excerpt:
"In their study, Using Economics Experiments to Evaluate Tort Reform Proposals, issued by George Mason Uni­ver­sityâ�?��?�s Mercatus Center last November, the pair tested, in part, how applying the two cost-shifting measures influenced how often subjects reached agreements in staged pretrial settlements.

"Playing the lawyer roles were eight undergrads divided into two groups���??plaintiff and defense. Opposing counsel were then paired off and asked to come to a monetary agreement in four abstract cases, meaning they were given no facts, just numbers: the settlement range of such cases and a figure indicating the credibility of the case. McCabe, a professor of economics and law at George Mason, and Inglis, a research scientist specializing in tort reform issues at the university���?�s Center for the Study of Neuroeconomics, then changed the settlement situations in each case to test different litigation theories.

"When they applied the California Code of Civil Procedure �?§ 998, which charges court costs to parties judged to have refused meritorious pretrial settlement offers, students settled their cases at a rate about equal to that of cases negotiated when both parties bore their own costs. And when they applied the stricter English Rule, which requires the losing party to pay the court costs of both sides, settlements dropped as much as 20 percent.

"What this shows, McCabe says, is that 'these various attempts to shift the burden of costs around in a way that should encourage people to settle did no such thing.'"

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Writing in the Financial Times, Hazlett points out that Bush Administration policies delayed the spectrum allocations, causing voice and data networks to suffer and stunting an array of wireless products. Yet in spite of those delays, carriers have been able to create new broadband networks that share bandwidth among tens of millions of voice and data customers.

It's the spectrum, stupid, Financial Times, April 7, 2008. By Thomas Hazlett.

Excerpt:
"On one stratagem or another, regulators have bottled up the rich, bountiful spectrum of the TV band for decades. This is senseless carnage for the high-tech economy. Over the past 22 years, the 'digital TV' transition ���?? now scheduled for midnight, Feb. 17, 2009, when over-the-air analogue broadcasting is to cease ���?? has been the prime culprit. But for the last seven years this perpetrator had inside help.

"The Bush administration, getting settled into its new digs in March 2001, began reading up and found out about the dreadfully slow-moving process to release TV airwaves for competitive use. They quickly moved to slow it down further.

"In 1997, legislation mandated that auctions of licences allocated TV band spectrum take place by June 2002. The George W. Bush White House investigated. It found the economy was bad and the stock market was worse. The wireless carriers said that they preferred not to have more competitive bandwidth released, and the government revenue forecasters advised that licence bids would be modest. The administration declared an additional multi-year auction delay a 'win-win'.

"It is easy to lose things; here regulators saw only the receipts and the incumbent interests, and lost about 300m consumers in the crowd. Voice and data networks have suffered, and the anti-technology policy has stunted an array of wireless products.

"Where lust for auction revenue has been tamed, better rules have unleashed torrents of innovation. In 1988, the FCC abandoned mandates that cellular operators deploy particular technologies. This was a 'giveaway' to cellular licensees, who acquired valuable rights. But freedom drives productive solutions. A stunning example is found in wireless broadband. As of June 2007 (the latest figures available), the FCC reported some 35m high-speed mobile subscribers, up from zero three years earlier. Even without the long-delayed spectrum allocations, carriers are able to create new broadband networks that intensely share bandwidth among tens of millions of voice and data customers.

"Such efficiencies are precisely what we ought to be facilitating. Dribbling out key inputs so as to hear tax collectors cackle is the government equivalent of fool���?�s gold. It is only a 'win-win' if you are forgetting to count what really matters."

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Instead, said Hazlett, referring to National Association of Broadcasters protests, "These interests emphatically claim that they oppose the merger because it will lead to a monopoly that will harm consumers. This fierce opposition is powerful evidence in itself that AM/FM radio-'free radio'-competes with satellite radio, and reveals the true concern of terrestrial stations: that the merger will create a stronger rival better able to meet the needs of consumers."

State AGs give DoJ, FCC serious static over XM-Sirius merger, Ars Technica, March 28, 2008. By Matthew Lasar.

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Espinel's remarks came at the Fordham Intellectual Property Law Institute's 16th Annual Conference on Intellectual Property Law and Policy, held March 27 and 28 in New York, where she was speaker for a discussion entitled United States v. China in the WTO.

Industry Losing Faith in WIPO; Debates US WTO Cases Against China, Intellectual Property Watch, March 28, 2008. By Liza Porteus Viana.

Excerpt:
"Conference speakers also debated whether the piracy complaints lodged against China at the World Trade Organization are going to be effective in compelling Beijing to enforce anti-counterfeiting and anti-piracy measures. WTO panels have been formed to deal with two IP rights-related complaints. Twelve members have signed on to the United States���?� arguments, including Brazil, Argentina, Thailand, Turkey and the European Union.

"The United States filed a case against China, WT/DS362/7, for which a panel was formed on 25 September. In it, the United States alleges China has failed to provide 'criminal procedures and penalties to be applied in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale that fail to meet certain thresholds' (IPW, WTO/TRIPS, 27 September 2007).

"In a second case brought by the United States, WT/DS363/5, the WTO in November launched an investigation into allegations that China is unfairly limiting the flow of copyrighted material from the United States into the country (IPW, WTO/TRIPS, 28 November 2007).

"Victoria Espinel, who served as the first assistant US Trade Representative for intellectual property and innovation, said litigation in the China matter was not preferable but 'it was deemed necessary by the US government.' The alleged violations of intellectual property rights enforcement and market access provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have a 'tremendous impact' on the industry, she added.

"There has been much discussion surrounding whether the United States should have lodged a complaint in the first place. Espinel outlined some of the criticisms, which include: the US could lose (which could be interpreted to mean the TRIPS agreement does not include effective enforcement); the case is not big enough; China could retaliate against US companies and stop cooperating with the US on intellectual property matters; and that it is unfair to China since it has made some progress in this area.

"'None of them, to me, are compelling reasons for the US to not exercise its right before the WTO,' Espinel continued. Doing nothing, she said, will 'leave the US hostage to China���?�s desires.'"

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The award, which is named for a late Virginia civil rights litigator, recognizes a law student's commitment to uncompensated or minimally compensated pro bono work and other public service. Brott will receive the Hill Award during the VSB's Pro Bono and Access to Justice Conference on May 22, 2008, at the Washington and Lee University School of Law in Lexington.

The first Mason Law student to have won the Hill Award, Brott developed the LSNV-GMU Intake Initiative, a student-led program that helps Legal Services of Northern Virginia to conduct intake interviews of applicants seeking legal assistance. The program operates over a 30-hour period weekly, with clients interviewed about issues that include family, consumer, bankruptcy, and housing law.

Brott publicized the program and recruited approximately 30 student volunteers, each of whom pledged to commit 35 hours to pro bono work during the 2007-08 academic year. In addition, she trained new volunteers and supervised their work.

Assistant Dean for Academic Administration Annamaria Nields says Brott "had a definite vision" when she initially approached Mason Law officials about expanding pro bono opportunities for law students. In a nomination letter, Nields wrote, "The task may have seemed insurmountable to some -- particularly to a full-time law student -- but Ms. Brott was passionate about the need to motivate students and determined to tackle the job."

Brott, who graduates in May from the law school, is considering a career in international work, possibly for a nonprofit focusing on democracy building or legal reform.

Under terms of the Vienna Convention, law enforcement officials must inform a citizen's consulate after an arrest. In a 1993 Texas case, Houston police failed to notify the Mexican consulate of the arrest of a Mexican citizen, who had spent most of his life in the U.S., after his arrest for participation in a gang rape and double homicide. The Cour International de Justice (World Court) ordered the U.S. to reconsider the case, and President Bush, despite prior withdrawal from the organization, issued a memorandum instructing U.S. state courts to comply with an international court ruling.

Somin commented that "there is little reason to believe that ICJ decisions are likely to establish better legal rules than those produced by our domestic law similar international courts are deeply suspect because most of their judges represent oppressive dictatorships or, at best, unaccountable elites from democratic states."

Limiting executive power, The Denver Post, March 27, 2008. By David Harsanyi.

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Sales, a former senior policy official at the Department of Homeland Security, told the Wall Street Journal, "This is the sort of thing that critics of information-sharing arrangements point to" in criticizing some of the Bush administration's counterterrorism programs, which have allowed U.S. spy agencies greater access to private information than ever before.

Passport Breaches Fuel Concerns, The Wall Street Journal, March 22, 2008. By Jay Solomon and Siobhan Gorman.

Excerpt:
"The State Department said the passport system contains as many as 200 million records and isn't connected to any other database. The department acknowledged that laws might have been violated, noting that the 1974 Privacy Act generally prohibits personal information from being disclosed without consent.

"The three candidates released statements demanding an investigation and criticizing the State Department for its lax oversight.

"'I expect a thorough review and a change in procedures as necessary to ensure the privacy of all passport files,' said Mr. McCain, the presumptive Republican nominee.

"Congress and civil-liberties organizations have voiced worries about Washington's ability to access the private information of Americans. This concern has been fed by the administration's counterterrorism programs, which have enhanced the ability of U.S. spy agencies to comb private phone records and financial transactions.

"'This is the sort of thing that critics of information-sharing arrangements point to,' said Nathan Sales, a former senior policy official at the Homeland Security Department.

"Officials said most of the information in the candidates' passport files came from past applications, including their Social Security numbers, home and email addresses and phone numbers. In a minority of cases, they said, passport files also include documents related to citizenship determinations, for instance, for American citizens born outside the U.S. Mr. McCain was born in Panama. The files apparently don't show where individuals have traveled.

"The State Department first said late Thursday that Mr. Obama's file had been accessed without authorization by three individuals working for the two contractors. The disclosure was prompted by a Thursday article in the Washington Times.

"Officials said Mr. Obama's file was accessed Jan. 9, Feb. 21 and March 14, and an internal-security program alerted administrators from the State Department's Office of Passport Services. Two of the contractors' employees were subsequently fired, while a third was reprimanded. It was later learned that this third employee accessed Mr. McCain's file earlier this year, officials said.

"The State employee accessed Mrs. Clinton's passport file last summer during a training exercise on processing passports. At the time, the department faced a backlog of applications. Officials said that backlog -- and the need to train people to process all those applications -- may have caused the breach.

"'We were bringing in people who don't normally do passport work,' said department spokesman Sean McCormack. 'When you're doing training, you need to be able to actually work with the system in order to do a good job.'

"The breach highlights a chronic problem plaguing agencies that oversee national security or gather large quantities of data on Americans. The Government Accountability Office has found problems with information security across the government since 1997, said Gregory C. Wilshusen, director of information-security issues at the GAO, the investigative arm of Congress. The government 'doesn't measure how well or how effectively' its security measures work, he said.

"In a report last year, Mr. Wilshusen found information security lacking at the departments of State, Homeland Security, Justice and Defense. The deficiencies create increased risk 'they will not be able to effectively protect the confidentiality, integrity, and availability of their information and information systems,' Mr. Wilshusen wrote.

"In January, he reported that the Internal Revenue Service had fixed only a third of its security weaknesses. Among them: granting employees access to systems and information they don't need to do their jobs.

"Experts said insiders often are neglected when agencies set security procedures. 'There's been so much emphasis on hacking from the outside; it's the people inside who are just as much of a risk,' said Ellen Libenson, a vice president at Symark International Inc. of Agoura Hills, Calif., a computer-security company. She said contractors can pose a threat because they aren't vetted in the same way as government employees. Private contractors also tend to hide data when their employees are involved in breaches, firing them quietly and allowing them to get a job at other firms.

"One solution, she said, is using software to restrict contractors' access to sensitive data. 'You treat them like an outsider,' she said."

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The Supreme Court found in Riegel that the FDA had approved the medical device at the heart of the case and its labeling through its extensive premarket approval process and therefore held that a state court claim was barred by federal law.

Leave It to the FDA, The Washington Post, March 15, 2008. By James Copland.

Excerpt:
"Medtronic argued that whatever the law of New York, the FDA had approved the device's design and labeling -- the very question at issue -- under its extensive premarket approval process. And the Medical Device Amendments of 1976 specifically states that once a device has gone through that approval process, states may not 'establish or continue in effect ... any requirement ... which is different from, or in addition to, any requirement applicable under [federal law] to the device.'

"With such explicit preemption language, the Supreme Court found it easy to determine, by a viote of 8 to 1, that the Riegels' state tort claim was barred by federal law. The decision will not apply to all medical devices but rather only those that, like the catheter, are 'Class III' devices subject to the FDA's most rigorous testing procedures. Also, individuals can still sue if they can show that the device was manufactured in noncompliance with the design approved by the FDA, or if the FDA determines that the company committed fraud in the application process.

"In its second major preemption case, Warner Lambert v. Kent, the Supreme Court last week deadlocked 4 to 4 (Chief Justice John Roberts had recused himself). The court simply let the lower court decision stand without any written decision or even an indication of where each justice stood.

"Court watchers interested in preemption are therefore anxiously awaiting a case scheduled for this fall, Wyeth v. Levine, which promises to define the scope of preemption doctrine for FDA-approved products apart from the medical devices covered in Riegel. Levine involves a state 'failure-to-warn' claim: Wyeth's FDA-approved label noted the risk of Levine's injury, but the plaintiff argues that the label could have been stronger or more specific and that the FDA's label was merely a 'floor.'

"Thus, the court must decide whether Levine's claim is preempted by the FDA's extensive review and approval of pharmaceutical labeling. The case is more difficult than Riegel in part because the Food, Drug and Cosmetic Act contains no express preemption provision, so the court can reject Levine's failure-to-warn claim only if it determines that the federal regulatory scheme preempts such lawsuits. How the justices will rule in Levine is anyone's guess."

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"When we have a 4-4 decision, it creates uncertainty in the law. We know it's important enough for the court to take, but we don't know the answer," Rotunda commented in an article appearing in Bloomberg.com.

Four-to-four rulings resolve a case by upholding the lower court's decision without setting a nationwide precedent. Over the course of the 2007-08 term, six cases being considered by the court have the potential for 4-4 rulings due to recusals. In a large number of cases, the reason behind these recusals is the justices' stock ownership.

Pfizer, Exxon Find U.S Justices as Shareholders May Cost Them, Bloomberg.com, March 11, 2008. By Greg Stohr.

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