A Defense of Physicians’ Gatekeeping Role: Balancing Patients’ Needs with Society’s Interests

Article by: Jessica Mantel

42 PEPP. L. REV. 633 (2015)

Although scholars and policymakers increasingly accept the need to ration health care, physicians doing so at the bedside remains controversial. Underling this debate is how to characterize the duty of care physicians owe their individual patients. Ethically, physicians are under strict fiduciary obligations that require them to give primacy to individual patients’ best interests. However, new health care delivery models that hold providers financially accountable for health care costs assign to physicians a gatekeeping role, with physicians obliged to balance individual patients’ needs with the competing societal goal of controlling costs.

This Article explains that the choice between the traditional patient-centered duty of care and a dual duty of care that balances patient and societal concerns turns on which paradigm best promotes the public interest. It then argues that the public interest would be better served by a dual duty of care because bedside rationing is essential if the U.S. is to successfully control health care costs. In addition, a dual duty of care furthers the policy goals underlying recent federal and state health policy initiatives.

This Article concludes by identifying several tenets of health law and ethics biased toward a patient-centered duty of care⎯physicians’ duty of advocacy, the medical malpractice system, and informed patient consent⎯and contends that each should be reformed to accommodate physicians’ dual duty of care.

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The Zombie Lawyer Apocalypse

Article by: Peter H. Huang & Corie Rosen Felder

42 PEPP. L. REV. 727 (2015)

This Article uses a popular cultural framework to address the near-epidemic levels of depression, decision-making errors, and professional dissatisfaction that studies have documented are prevalent among law students and lawyers today.

Zombies present an apt metaphor for understanding and contextualizing the ills now common in the American legal and legal education systems. To explore that metaphor and its import, this Article will first establish the contours of the zombie literature and will apply that literature to the existing state of legal education and legal practice, ultimately describing a state that we believe can only be termed “the Zombie Lawyer Apocalypse.” This Article will draw parallels between the zombie state of being—that of being mindless, thoughtless, and devoid of hope—and the state of legal culture and legal education today.

This Article will then offer solutions to the problem of legal zombies. These solutions draw on the “positive psychology” literature and include: (1) mindfulness, (2) a shift in attribution style (the way people think about their experiences), (3) reliance on core strengths, and (4) an effort to develop meaning in work and life. Through the application of these and other interventions, we believe that it may be possible to stem the tide of lawyer and law student dissatisfaction and protect future students and lawyers from falling prey to the Zombie Lawyer Apocalypse.

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Small Data Surveillance v. Big Data Cybersurveillance

Article by: Margaret Hu

42 PEPP. L. REV. 773 (2015)

This Article highlights some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals’ digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the 24/7 surveillance of the body and the 360° surveillance of the biography. Further, data science logic and reasoning, and big data policy rationales, appear to be driving the expansion of these emerging methods. Consequently, I suggest that an inquiry into the scientific validity of the data science that informs big data cybersurveillance and mass dataveillance is appropriate.

As a topic of academic inquiry, thus, I argue in favor of a science-driven approach to the interrogation of rapidly evolving bulk metadata and mass data surveillance methods that increasingly rely upon data science and big data’s algorithmic, analytic, and integrative tools. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court required scientific validity determinations prior to the introduction of scientific expert testimony or evidence at trial. I conclude that to the extent that covert intelligence gathering relies upon data science, a Daubert-type inquiry is helpful in conceptualizing the proper analytical structure necessary for the assessment and oversight of these emerging mass surveillance methods.

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The IPO Crisis: Title I of the JOBS Act and Why It Does Not Go Far Enough

Article by: Brian Howaniec

42 PEPP. L. REV. 845 (2015)

Financial legislation is a constant balancing act between economic growth and investor protection. That balancing act took center stage when President Obama—as well as legislators from both parties—celebrated the relaxation of corporate financial regulations on April 5, 2012. These new regulatory reductions are known as the Jumpstart Our Business Startups Act (cleverly nicknamed the JOBS Act). President Obama heralded the JOBS Act as helping both businesses and the American people. Many politicians and commentators were particularly excited about Title I of the JOBS Act, which is designed to help young, fast-growing companies go public cheaper, faster, and easier. However, some investor advocates have questioned the changes and fear that the JOBS Act may have put investor protection measures at risk.

This Comment explores the brewing controversy over Title I and assesses the actual impact that it is having (and will have) on investor protection and the IPO market and argues that Title I has the ability to affect both, but, due to factors outside of Congress’s control, will likely have only a minimal effect on either.

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AUMF Panel Transcript

Article by: Rosa Brooks & Benjamin Wittes

42 PEPP. L. REV. 607 (2015)

Ben Wittes is a senior fellow of governance studies at the Brookings Institution. Rosa is a professor at Georgetown Law Center, where she teaches courses on international law, national security, constitutional law, and other subjects.

This article is a transcript of a discussion between Wittes and Brooks on whether or not the 2001 Authorization for Use of Military Force (“AUMF”) should be renewed.

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International Humanitarian Law Divergence

Article by: Lesley Wexler

42 PEPP. L. REV. 549 (2015)

International Humanitarian Law (IHL) influences U.S. national security policy in many ways. Most obviously, the United States may voluntarily accept constraints by ratifying a treaty, implementing necessary changes, and abiding by judicial interpretations of that treaty contrary to executive or congressional preferences. And absent persistent objection, the United States is also bound by customary IHL as well.

This Essay suggests more attention also be paid to a third way in which IHL shapes U.S. national security policy. Even that IHL, which the United States does not accept and may even affirmatively reject, sometimes guides U.S. national security policy. If other countries accept particular IHL treaties, treaty interpretations, or customs that diverge from the United States’ approach, the United States may alter its national security practices. This Essay seeks to describe the international ecosystem in which states engage divergent IHL preferences. Specifically, this Essay focuses on the substantive areas in which divergence with the United States occurs, the constraints other states may deploy to impose or reflect their IHL preferences, and the likely U.S. responses.

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