John M. Conley

Deciding to decide : agenda setting in the United States Supreme Court

Jurisdiction and procedure the internal process special situations indices and signals bargaining, negotiation and accommodation strategy certworthiness a decision model. Appendix: an extended discussion of jurisdiction.

Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives

For more than half a century, the label “small claims” has been applied to a wide range of judicial procedures intended to achieve the simple and economical resolution of disputes involving limited amounts of money (Ruhnka & Weiler, 1978:1–5). Despite their differences, small claims courts share a number of common elements, such as simplified procedures, reduced costs, limited rights to appeal, and the opportunity for litigants to appear without lawyers (Steele, 1981:330). Most research on small claims courts focuses on the parties involved or on the characteristics and outcomes of the cases brought. This chapter has a different focus. We are concerned with how the informality of small claims court procedures affects the ways in which litigants tell their stories. This focus yields significant insights into the way that disputants conceive of their problems and devise strategies to resolve them while at the same time raising questions about the efficiency and fairness of the small claims court as an adjudicative forum.

The next controversy in genetic testing: clinical data as trade secrets?

Sole-source business models for genetic testing can create private databases containing information vital to interpreting the clinical significance of human genetic variations. But incomplete access to those databases threatens to impede the clinical interpretation of genomic medicine. National health systems and insurers, regulators, researchers, providers and patients all have a strong interest in ensuring broad access to information about the clinical significance of variants discovered through genetic testing. They can create incentives for sharing data and interpretive algorithms in several ways, including: promoting voluntary sharing; requiring laboratories to share as a condition of payment for or regulatory approval of laboratory services; establishing – and compelling participation in – resources that capture the information needed to interpret the data independent of company policies; and paying for sharing and interpretation in addition to paying for the test itself. US policies have failed to address the data-sharing issue. The entry of new and established firms into the European genetic testing market presents an opportunity to correct this failure.

Global Banks as Global Sustainability Regulators?: The Equator Principles

Banks might now seem odd candidates for the role of global sustainability regulator. Nonetheless, in limited areas of their operation, where global banks kept risk on their balance sheets and were financially exposed to many types of risk often otherwise treated as “externalities,” banks began to enact policies to encourage what they construe as “sustainable” banking. A small number of these banks have started to extend these principles of responsible action more broadly, across many of their business lines, as conditions of lending to their corporate clients. To this extent, it is possible to talk about (some) global banks as global sustainability regulators. The “law of unintended consequences” as used in the legal literature almost always refers to the unintended negative consequences of a regulation or policy. In this article, however, we discuss a potentially positive unintended consequence of the deregulatory and privatization trend of the 1980s and 1990s that was fueled by neoliberal political commitments: some private banks have taken a leadership role in regulating development. Specifically, these banks are enacting policies that attempt to mitigate the potentially negative social and environmental consequences of infrastructure development in politically unstable or environmentally fragile landscapes. The vehicle for doing this is a voluntary agreement called the Equator Principles (EPs). The article describes and analyzes the EPs and reports the initial results from an interview-based study of the various EPs stakeholders, including bankers, government officials, lawyers, consultants, and critics from nongovernmental organizations. We address—from the perspective of these stakeholders—such questions as why the participating banks decided to join the EPs, what effects, if any, the EPs are having on development practice, and whether the EPs will ultimately prove to be more than a public relations exercise.

Looking for Trouble: Preventive Genomic Sequencing in the General Population and the Role of Patient Choice

Advances in genomics have led to calls for developing population-based preventive genomic sequencing (PGS) programs with the goal of identifying genetic health risks in adults without known risk factors. One critical issue for minimizing the harms and maximizing the benefits of PGS is determining the kind and degree of control individuals should have over the generation, use, and handling of their genomic information. In this article we examine whether PGS programs should offer individuals the opportunity to selectively opt out of the sequencing or analysis of specific genomic conditions (the menu approach) or whether PGS should be implemented using an all-or-nothing panel approach. We conclude that any responsible scale-up of PGS will require a menu approach that may seem impractical to some, but that draws its justification from a rich mix of normative, legal, and practical considerations.

Genomics, Biobanks, and the Trade-Secret Model

An alternative to traditional informed-consent approaches to human subjects could provide flexibility and increased participation. Genomic biobanks—repositories of human DNA and/or associated data, collected and maintained for biomedical research—present ethical challenges different from those traditionally associated with medical research. Historically, when researchers obtained and used tissue samples, it was for defined purposes and the nature of the research was disclosed to contributors, who were asked to consent to the specific research project. With genomic biobanks, in contrast, the entity holding the samples may not be involved in the research, and future uses of the samples may be unknown. Although traditional research promised confidentiality and/or anonymity to participants, advances in DNA technology may render these safeguards meaningless (1–3). As a consequence, many ethicists argue that traditional informed consent may be illusory if not impossible (1, 4) and that different approaches to the ethics of genetic sample collections are needed (5, 6).

A Trade Secret Model for Genomic Biobanking

Genomic biobanks present ethical challenges that are qualitatively unique and quantitatively unprecedented. Many critics have questioned whether the current system of informed consent can be meaningfully applied to genomic biobanking. Proposals for reform have come from many directions, but have tended to involve incremental change in current informed consent practice. This paper reports on our efforts to seek new ideas and approaches from those whom informed consent is designed to protect: research subjects. Our model emerged from semi-structured interviews with healthy volunteers who had been recruited to join either of two biobanks (some joined, some did not), and whom we encouraged to explain their concerns and how they understood the relationship between specimen contributors and biobanks. These subjects spoke about their DNA and the information it contains in ways that were strikingly evocative of the legal concept of the trade secret. They then described the terms and conditions under which they might let others study their DNA, and there was a compelling analogy to the commonplace practice of trade secret licensing. We propose a novel biobanking model based on this trade secret concept, and argue that it would be a practical, legal, and ethical improvement on the status quo.

The Social Reform of Banking

Recent developments in banking, including high-profile prosecutions for illegal activities, suggest further regulatory interventions on both sides of the Atlantic. Yet the structure of much banking regulation requires banks to make good faith determinations of the type of risks to which their loans give rise—determinations that can be and, in some cases have been, manipulated. Rather than evaluating specific regulatory interventions, this chapter will focus on the culture within financial institutions themselves, particularly the global entities that are explicitly or implicitly too big to fail, and on approaches to regulation that might affect and be affected by that culture. Our analysis is informed by the perspectives of anthropology, organizational and social psychology, and new governance regulatory theory.

Rethinking the product of nature doctrine as a barrier to biotechnology patents in the United States—and perhaps Europe as well1

For more than a decade, gene patents have been the driving force behind the burgeoning American biotechnology industry. Many people—even otherwise sophisticated lawyers—assume that such patents cover only methods and therapeutic applications. They are shocked to learn that patents on genes themselves, as long as they are isolated from the body, are routinely allowed by the United States Patent and Trademark Office and acquiesced in by the courts. The practical consequences of this development are equally startling to the non‐patent community: gene patent holders can control not only commercial applications, but virtually all research involving the subject genes. Since genes are valuable as transmitters of information, the ultimate effect can be a monopoly on the use of that information. This, we believe, takes intellectual property protection to an unprecedented level. All challenges to gene patents in the United States have thus far been dismissed almost out of hand. One possible avenue of attack that has gotten little attention involves the ‘product of nature’ doctrine, whose roots in American patent law go back to the nineteenth century. In its strongest form, it holds that compounds and compositions of matter that are not materially different from naturally occurring products are not patentable subject matter. In this article, we explore the history and current status of this doctrine. After reviewing some of the critical scientific elements of gene patents, we ask whether the product of nature doctrine, properly argued, might be reinvigorated as a brake on the rush to patenting the human genome. We believe that it would be particularly useful for lawyers and regulators in Europe to examine the American experience, since the European position on gene patents seems still to be more open to debate.

When Cultures Collide: Social Security and the Market

In his 1999 State of the Union address, President Clinton raised the possibility of investing social security funds in the equities market. In this article, two anthropologists who have studied the culture of the financial world assess the Presidents proposal. The analysis focuses on the vast cultural gap between the private-sector participants in the equities market and the federal bureaucrats who would inevitably manage social security investments. The authors examine similar arrangements at the state level, the cultural differences among the entities involved, and how those differences interfere with fiduciary decision-making. They conclude that the gap is simply too wide for the proposal to be workable, and as a result, the adverse consequences likely outweigh the potential benefits. Although some consequences are foreseeable, more threatening consequences can be envisioned only in the most general terms.