Volume 78, Number 6

December 2003

Malpractice Liability for Physicians and Managed Care Organizations

Jennifer Arlen, W. Bentley MacLeod

This Article provides an economic analysis of optimal negligence liability for physicians and managed care organizations (MCOs), explicitly modeling the role of physician expertise (and inadvertent error) and MCO authority. Professors Arlen and MacLeod find that even when patients anticipate the risks imposed on them, physicians and MCOs do not take optimal care absent sanctions for negligence because markets and contracts cannot regulate their non-contractable, post-contractual actions that are essential to optimal care. Negligence liability can induce optimal care if damage rules are optimal. Optimality generally will require that MCOs be held liable for negligence by affiliated physicians, in addition to their own negligence. Moreover, Professors Arlen and MacLeod find that MCOs should be liable even when they do not exert direct control over physicians. Finally, they show that it may be optimal to preclude physicians and MCOs from obtaining liability waivers from patients, even when patients are fully informed and waive only when it is in their interests to do so at that moment.

Remorse, Responsibility, and Regulating Advocacy: Making Defendants Pay for the Sins of Their Lawyers

Margareth Etienne

The ethics laws traditionally have afforded criminal defense attorneys greater latitude than other lawyers in their use of aggressive strategies on behalf of their clients. Federal judges nonetheless attempt to regulate zealous, or what is perceived as overzealous, advocacy by criminal defense lawyers. They do so by using the “acceptance of responsibility” provision of the United States Sentencing Guidelines to impose harsher sentences on criminal defendants whose attorneys engage in aggressive forms of representation, such as making factually or legally dubious arguments, seeking tactical delays, or misleading the court. Judges justify these higher sentences by equating a zealous defense with remorselessness. This interpretation of the sentencing laws chills zealous advocacy in a fashion that has escaped review by most courts and scholars. This Article explores this method of regulation and its troublesome implications for criminal defendants and the attorneys who represent them.

Spectrum Abundance and the Choice Between Private and Public Control

Stuart Minor Benjamin

Prominent commentators recently have proposed that the government allocate significant portions of the radio spectrum for use as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other’s messages can eliminate the interference problem. They contend that this possibility renders a spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these “abundant networks” in the first place. In this Article, Professor Benjamin argues that these assertions are not well founded, and that efficiency considerations favor private ownership of spectrum.

Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process that can be subject to rent-seeking). Professor Benjamin contends that, on balance, these considerations favor private control. An additional factor makes the decision clearer: Abundant networks might not develop as planned, and so the flexibility entailed by private ownership-as well as the shifting of the risk of failure from taxpayers to shareholders-makes private ownership the better option.

The unattractiveness of a commons for abundant networks casts serious doubt on the desirability of spectrum commons more generally. If private ownership is a more efficient means of creating abundant networks, then the same is almost certainly true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates’ arguments undermines the appeal of a commons for most potential uses of spectrum.

Book Reviews

The Use of Gender-Loaded Identities in Sex-Stereotyping Jurisprudence

Sunish Gulati

In 1989, the Supreme Court held that Title VII protects against discrimination on the basis of sex stereotypes. Since then, sex-stereotyping jurisprudence has developed to protect many people who are discriminated against because of their failure to conform to a wide array of stereotypes about appropriate behavior and appearance for a particular sex. However, the judiciary has denied significant portions of the population protection from discrimination based on sex stereotypes by using a victim’s nonconformity to a particular stereotype to define a “gender-loaded identity,” and then finding that discrimination on the basis of that identity class is not discrimination based on sex or sex stereotypes. Thus although the law is clear that discrimination based on one’s failure to conform to stereotypes about appropriate clothing for a particular sex is in violation of Title VII, when a discrimination victim is classified as a crossdresser or transvestite most courts have found that such discrimination is permissible because it is based on transvestitism and not sex or sex stereotypes. Similar gender-loaded identities include the classifications of lesbians and gay men, who are defined based on their failure to conform to sex-specific stereotypes about appropriate sexual partners, and the classification of transsexuals, who are defined based on their failure to conform to many sex-specific stereotypes about appropriate behavior, appearance, and identity. This Note argues that the judiciary’s use of these gender-loaded identities is unjustified and obscures most courts’ analyses of sex-stereotyping claims.

The Teach Act: Copyright Law and Online Education

Kristine H. Hutchinson

In response to an increase in the use of the Internet to distribute distance education courses and resultant concerns that copyright law related to distance education activities had become outdated, Congress passed the Technology Education and Copyright Harmonization Act (TEACH Act) in November, 2002. Through this enactment, Congress sought to align educators’ rights to use copyrighted materials in online courses with their rights to use such materials in traditional, classroom-based courses. In this Note, Kristine Hutchinson argues that they did not achieve this result. Rather, she suggests, the Act is fraught with requirements and vague terminology, which have caused confusion amongst educational institutions and have resulted in the failure to take advantage of the Act. In the end, despite the Act’s shortcomings, Hutchinson concludes that the TEACH Act is viable legislation, and offers suggestions to aid educational institutions in making use of the expanded rights to use copyrighted materials in online courses enabled by the TEACH Act.

A Civics Action: Interpreting “Adequacy” In State Constitutions’ Education Clauses

Josh Kagan

The antipathy of federal and state courts toward equal protection arguments in lawsuits challenging the public funding of education have forced education activists to search for alternative doctrinal hooks as they continue to seek reform in states’ funding and management of schools. These activists have turned to state constitutions’ education clauses, which impose duties on state governments to provide an “adequate” education for all children in the state. However, the art of defining and measuring an “adequate” education has advanced little beyond its state in 1973, when Justice Thurgood Marshall found the term unhelpful. In this Note, Josh Kagan surveys various means of defining and measuring adequacy used by state courts, including the use of existing legislative or executive standards, the use of future legislative or executive standards, a variety of educational outputs (such as standardized test scores), and educational inputs (such as quality of teachers, curricula, or school buildings). Applying scholars’ theories of state constitutional interpretation and the history of state education clauses, Kagan argues that state courts should be aggressive in their use of educational inputs to define and measure educational adequacy. Unique factors of state governmental structure justify state court involvement in education policy questions that federal courts would consider inappropriate. These factors, coupled with the history of state education clauses, enable state courts to draw on a wide set of historical and current sources to define educational inputs required by state constitutions, and provide jurisprudential guidelines for this necessarily policy-laden analysis. Such an approach also encourages education activists to seek remedies other than reform to school financing systems; instead, activists can target states’ provision of particular educational inputs.

Rethinking Judicial Attitudes Toward Freedom of Association Challenges to Teen Curfews: The First Amendment Exception Explored

Todd Kaminsky

Circuit court decisions in the cases of Qutb v. Strauss and Hutchins v. District of Columbia signal a change in judicial attitude towards associational challenges to teen curfews: If a curfew contains an exception for activities protected by the First Amendment, then it will not be struck down as unconstitutional for infringing on a teenager’s right to associate. At first blush, a First Amendment exception appears sufficiently protective of a teenager’s right to associate. But as Todd Kaminsky demonstrates in this Note, the exception may in fact not go far enough. Certain activities that fall outside the scope of the exception—most notably, public discussion-are necessary antecedents for activities within the scope of the exception, such as protest. By examining sociological accounts of Freedom Summer, the Velvet Revolution, and other similar movements, he establishes the link between public discussion and protest and brings into sharp relief the negative First Amendment consequences of curtailing public discussion. In addition, he explores how a curfew, even with an exception, may make it more difficult for expressive teen organizations to recruit new members, by reducing the time available for teens to socialize and develop informal social networks. As such, Kaminsky concludes, courts should give due regard to associational challenges and scrutinize carefully teen curfews, despite the inclusion of First Amendment exceptions. Otherwise, courts may inadvertently erode teenagers’ right to associate by choking off the conditions necessary for the vigorous exercise of that right.