The Physician Payment Sunshine Act: an Important First Step in Mitigating Financial Conflicts of Interest in Medical and Clinical Practice, 45 J

UIC Law Review

Volume 45 Issue 3 The 10th Annual Employee Benefits Article 11 Symposium

Spring 2012

The Physician Payment Sunshine Act: An Important First Step in Mitigating Financial Conflicts of Interest in Medical and Clinical Practice, 45 J. Marshall L. Rev. 963 (2012)

Alexandros Stamatoglou

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Recommended Citation Alexandros Stamatoglou, The Physician Payment Sunshine Act: An Important First Step in Mitigating Financial Conflicts of Interest in Medical and Clinical Practice, 45 J. Marshall L. Rev. 963 (2012)

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This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE PHYSICIAN PAYMENT SUNSHINE ACT: AN IMPORTANT FIRST STEP IN MITIGATING FINANCIAL CONFLICTS OF INTEREST IN MEDICAL AND CLINICAL PRACTICE

ALEXANDROS STAMATOGLOU*

I. INTRODUCTION "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."' After six months of trying to pull her twenty-six-year-old son, Dan Markingson, out of a clinical trial testing antipsychotic drugs sponsored by pharmaceutical company AstraZeneca,, Mary Weiss left a voicemail for the trial coordinator, asking "[d1o we have to wait until he kills himself or someone else before anyone does anything?"2 Less than two weeks later, her son committed suicide. 3 After being diagnosed with schizophrenia and suffering from delusions for over a year,4 Markingson gruesomely killed himself in a halfway house shower..5 Making Markingson's death even

* Thank you to my family for your constant support, and thank you Sarah for everything, you are a saint. I love you. 1. See Louis D. Brandeis, Other People's Money, HARPER'S WEEKLY, Dec. 20, 1913, available at http://www.law.louisville.edu/library/collections/brandeis/node/196 (supporting the supposition that publicity is a remedy for "social and industrial diseases"). 2. Carl Elliott, The Deadly Corruption of Clinical Trials, MOTHER JONES, Sept./Oct. 2010, available at http://motherjones.comlenvironment/2010/09/dan- markingson-drug-trial-astrazeneca; Jeremy Olson and Paul Tosto, Dan Markingson Had Delusions. His Mother Feared the Worst Would Happen. Then it Did, ST. PAUL PIONEER PRESS (May 18, 2008, 12:01 AM), http://www.twincities.com/ci_9292549?IADID=Search-www.twincities.com- www.twincities.com&nclick check=l. 3. Elliott, supra note 2; Olson and Tosto, supra note 2. 4. See Olson and Tosto, supra note 2 (explaining that Weiss was surprised and somewhat skeptical of her son's diagnosis, given their family history of bipolar disorder). 5. Elliott, supra note 2. "Dan had stabbed himself to death with a box cutter, ripping open his abdomen and nearly decapitating himself. His body was discovered in the early hours of the morning by a halfway-house worker, along with a note on the nightstand that said. 'I left this experience smiling!"' Id. See also Second Aff. of Harrison G. Pope, MD., mph at 17, Weiss v. Bd. of Regents for the Univ. of Minn. (Minn. Dist. Ct. Nov. 30, 2007) (No. 27CV07- 1679), 2007 WL 5465856 (describing Markingson's death as a "psychotic,

963 964 The John Marshall Law Review [45:963

more shocking is the fact that that his caring physician's medical judgment may have been compromised by his own financial and professional self-interest. 6 After an uneventful childhood and early adulthood,7 Dan's behavior grew increasingly bizarre and destructive.8 When Dan threatened to kill his mother, she took Markingson to the hospital for treatment, a decision that ultimately led to his enrollment in the clinical trial and his suicide.9 His treating physician and psychiatrist at Fairview University Medical Center,'0 Dr. Stephen C. Olson, also served as a professor with the University of Minnesota's psychiatry department.11 After obtaining a court order to have Markingson involuntarily committed to a state treatment center due to his inability to make decisions about his own care,12 Dr. Olson stayed the commitment on the condition that

ritualistic suicide"). 6. See Elliott, supra note 2 (intimating that the primacy of the clinical research system has been subverted by market forces). 7. Elliott, supra note 2. Dan and his family were natives of the Minneapolis-St. Paul area. Id. Dan graduated high school, earned a perfect score on the verbal portion of the SAT, and graduated from University of Michigan in 2000 with a degree in English. Id. Dan then moved to Southern California in the hopes of starting a career as a screenwriter. Id. 8. Elliott, supra note 2. When Mary visited Dan in California, she discovered that Dan had encircled his bed with wooden posts, salt, candles and money in order to protect himself from evil spirits. Id. He then showed his mother a burn spot on his apartment's carpeting, claiming that aliens had done the damage. Id. Dan then became convinced that the Illuminati were orchestrating "an event" in Duluth, Minnesota. Id. At this "event," Dan was convinced that he would be called upon to murder many people. Id. Desperate for her son to return to Minnesota, she sent him emails pretending to be the guardian angel spirit of his dead grandmother, and suggested that the storm would begin soon in Minnesota. Id. 9. See Elliott, supra note 2 (stating that on November 12, Mary called the police and took Dan to the hospital after Dan said he would kill her if he was called upon to do so). 10. Olson and Tosto, supra note 2. Dr. Olson and Dr. Charles Schulz, head of the University's psychiatry department, helped launch Station 12, a unit within Fairview Hospital that was created in order to both treat psychotic patients and to screen them for research studies conducted at the University. Id. Prior to the creation of Station 12, Dr. Olson had only managed to recruit one research subject in six months, and was pressured by Quintiles, the Clinical Research Organization that managed the study at the University, by placing the program on probation. Elliott, supra note 2. But then, over the first nine months of Station 12's existence, Dr. Olson had recruited twelve patients. Id. Dr. Olson's recruiting was then held out as an example by Quintiles of how an under-performing program could turn around their recruitment numbers. Id. 11. Elliott, supra note 2. 12. Olson and Tosto, supra note 2. Three days after Dr. Olson recommended involuntarily commitment, a clinical psychologist also recommended commitment, noting that Dan had threatened to "slit his mother's throat." Elliott, supra note 2. 2012] The PhysicianPayment Sunshine Act 965

Markingson agree to follow the doctor's treatment plan.13 Dr. Olson's plan was to enroll Markingson in the Comparison of Atypicals in First Episode study ("CAFE"), a clinical trial sponsored by drug maker AstraZeneca at the University of Minnesota.14 The purpose of the CAFE study was to compare the effectiveness of AstraZeneca's popular antipsychotic drug Seroquel with two competing antipsychotic drugs.15 Markingson consented to the treatment plan, despite the fact that just days earlier, a court had ruled that he was unable to make decisions about his own care. 16 Markingson's participation in the study left him with fewer treatment alternatives, since he was required to adhere to the trial's drug regimen.17 Markingson's condition deteriorated during his six months enrolled in the study.18 Despite Ms. Weiss pleading for Dr. Olson to change his treatment or withdraw Markingson from the CAFE study altogether, Dr. Olson requested an additional six-month stay of commitment.19 Shortly after Dr. Olson's request, Dan committed suicide. 20 AstraZeneca compensated Dr. Olson and the University of Minnesota psychiatry department for each new recruit brought

13. MINN. STAT. ANN. § 253B.095(a) (West 2009). In Minnesota, involuntarily committed persons may have their commitment stayed if they agree to comply with their psychiatrist's treatment plan. Id. After a hearing and before a commitment order has been issued, the court may release a proposed patient to the custody of an individual or agency upon conditions that guarantee the care and treatment of the patient. Id. 14. Olson and Tosto, supra note 2. According to Ms. Weiss, "discussions about research started right away at the hospital." Id. 15. Elliott, supra note 2. 16. Id. Mary was shocked that Dan was enrolled in the study on the basis of his consent, given that, just days before, he was ruled to not have capacity to make decisions about his own care. Id. She subsequently made numerous attempts to withdraw him from the CAFE Study. Id. 17. Id. The CAFE Study tested the effects of antipsychotic drugs Seroquel, Zyprexa, and Risperdal in subjects experiencing their first psychotic episode. Id. The study called for the test subjects to take only one of the three drugs for a year. Id. It barred subjects from being taken off their assigned drug. Id. It prohibited switching to another drug studied in the trial. Id. It restricted which supplemental drugs subjects could take in order to manage the symptoms of side effects, such as depression. Id. The combined effect of all the restrictions on test subjects meant that they had fewer therapeutic options available to them as a result of taking part in the study than if they were not in the study. Id. 18. Id. Four months after Dan's entry into the study, notes from workers charged with caring for Dan at the halfway house described how his thoughts were still "delusional and grandiose." Id. In addition, his appearance was disheveled, isolated and withdrawn, and lacked insight and self-awareness. Id. 19. Id. Dr. Olson noted that Dan would be in danger if treatment were to end. Id. 20. Supra note 5 and accompanying text. 966 The John Marshall Law Review [45:963 into the study to the tune of over $15,000 per recruit.21 Dr. Olson's financial ties with AstraZeneca ran deeper; he was paid $240,045 by the company between 2002 and 2008 for speaking engagements, consulting, and research grants. 22 Regardless of whether Dr. Olson's medical judgment was actually impaired with respect to Dan Markingson's medical care, his financial stake in the CAFE study raises questions over physicians' commitment to their patients in the face of outside financial interests. The steadily stronger ties between physicians and the pharmaceutical industry have roused the public's attention. As a result, in March of 2010, Congress passed the Physician Payment Sunshine Act ("Sunshine Act" or "Act"),23 mandating that physicians report to the Secretary of Health and Human Services ("Secretary") all payments over $100 from pharmaceutical companies. 24 The Secretary must then aggregate and post this data to an easily searchable and downloadable public website. 25 In a word, Congress mandated transparency. This Comment will evaluate whether the Sunshine Act's transparency measures will negate the deleterious impact that physician-pharmaceutical financial relationships have on patients' trust in physicians. Part II of this Comment will review the relevant duties that a doctor owes to his or her patient, and the extent to which the pharmaceutical industry potentially undermines those duties by influencing that doctor's actions and judgments. Part III will survey the relevant provisions of the Sunshine Act and evaluate their likely effect on the doctor-patient relationship, as well as the industry-physician relationship. Part IV will propose additional duties on pharmaceutical companies and physicians that more effectively protect patients' interests.

II. BACKGROUND

A. Physicians'DutiesOwed to Patients-Primaryand Secondary Interests The physician-patient relationship is characterized by trust, service, and an imbalance of power. 26 It is considered a fiduciary

21. Elliott, supra note 2. 22. Id. While fees for speaking engagements and consulting are paid directly to the physician, money for research grants is paid to the university. Id. 23. 42 U.S.C. § 1320a-7h(a) (2010). 24. Id. 25. Id. 26. ARTHUR B. LAFRANCE, BIOETHICS: HEALTH CARE, HUMAN RIGHTS, AND THE LAW 691 (2d ed. 2006). Trust is a critical aspect of the therapeutic relationship between physician and patient. Id. Under traditional healing theory, patients must bare themselves both physically and emotionally in order for the physician to properly diagnose an illness. Id. Analysts consider 2012] The PhysicianPayment Sunshine Act 967 relationship, defined by the duties owed by the physician to the patient.27 Physicians are entrusted with power that must be used for the benefit of his or her patient.28 To that end, physicians rely on their specialized medical knowledge and expertise in caring for and advising their patients. 29 But they also retain substantial control over patients' access to medical resources.3 0 Because patients are usually ill and vulnerable when seeking a physician's advice and care, patients are highly dependent on the physician's judgment. 31 Patients rely on their physicians to provide advice and judgment that is wholly loyal to the patient's therapeutic needs and unaffected by any other interests. 32 Conflicts of interest arise when a secondary interest creates a

the therapeutic effect of this trust not just effective, but necessary. Frances H. Miller, Symposium Trust Relationships Part 1 of 2: Trusting Doctors: Tricky Business When it Comes to Clinical Research, 81 B.U. L. REV. 423, 426-427 (2001). See also Karine Morin and Jacqueline M. Darrah, What You Should Know About Gifts to Physiciansfrom Industry: Module 1: Overview of Ethical, Professional, and Legal Issues, 23, AMR. MED. ASS'N (July 2003), available at http://www.ama-assn.org/amal/pub/upload/mm/384/julyO3vmppt.ppt (explaining that as a result of the fiduciary nature of the physician-patient relationship, physicians are generally expected to avoid conflicts of interest that may undermine patient care). 27. See LAFRANCE, supra note 26, at 691 (referring to the relationship between patient and health care provider as a fiduciary relationship). The fiduciary concept claims its origins in the law of trusts and agency. Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241, 243 (1995). The trustee, or fiduciary is "entrusted with power or property," and is under a duty to manage it for the benefit of the beneficiary. Id. The fiduciary's actions are subject to the control of beneficiaries, who direct the fiduciaries to act for their benefit. Id. at 243-44. While performing their fiduciary duties, fiduciaries are prohibited from furthering their own personal interests while performing work or service for the benefit of the beneficiary. Id. at 244. See also Miller, supra note 26, at 427 (stating that because of the inherent imbalance of power in the physician-patient relationship, the law has imposed fiduciary duties in order to provide balance and protect the patient from potential overreaching by the physician). But see Rodwin, supra note 27, at 242 (stating that although doctors perform fiduciary-like roles and hold themselves out as fiduciaries in their ethical codes, the law only holds physicians accountable as fiduciaries in restricted situations). 28. See LAFRANCE, supra note 26, at 691 (explaining that the physician's primary responsibility is to his or her patient). See also Rodwin, supra note 27, at 243 (stating that "the law defines a fiduciary as a person entrusted with power or property to be used for the benefit of another and legally held to the highest standard of conduct."). 29. Rodwin, supra note 27, at 245. 30. Id. at 246. 31. Id. 32. See LAFRANCE, supra note 26, at 692 (stating that a physician's primary responsibility is to his or her patient, and that all personal interests of the physician, including financial, professional or research goals are not to affect a physician's judgment when dispensing with a patient's care). 968 The John MarshallLaw Review [45:963 risk that a physician's professional judgment will be unduly influenced.33 A physician's primary interest includes promoting the patient's welfare by using his or her judgment and discretion in advising the patient.34 For a physician, a secondary interest is one that does not factor in the care of the patient.35 While certainly not the only secondary interest that may affect a physician, financial interests have garnered the most attention from scholars and commentators.36 While many secondary interests are legitimate,37 they may become problematic for the patient when they begin to affect, or have the appearance of affecting, a physician's professional judgment. 38 Despite the fact that physicians are held out as fiduciaries, in general, the conflicts between physicians' primary and secondary interests are not regulated by the courts as they are in other fiduciary contexts. 39 The exception to that is Moore v. The Regents of the University of California, where the California Supreme

33. CONFLICT OF INTEREST IN MEDICAL RESEARCH, EDUCATION, AND PRACTICE 46 (Bernard Lo and Marilyn J. Field eds., The National Academies Press 2009) (hereinafter CONFLICT). 34. Id. See also Kevin W. Williams, Article: Managing Physician Financial Conflicts of Interest in Clinical Trials Conducted in the Private Practice Setting, 59 FOOD DRUG L.J. 45, 56 (2004) (defining a conflict of interest as "a set of conditions in which professional judgment concerning a primary interest (such as a patient's welfare or the validity of research) tends to be unduly influenced by a secondary interest (such as financial gain)."). 35. See CONFLICT, supra note 33, at 46 (describing how secondary interests of a physician are those that are separate from the patient's care). 36. See id. at 47 (noting that conflict of interest policies typically focus on financial gain because they are more objective, fungible and quantifiable, and therefore thought to be more effectively regulated as compared to other secondary interests). See also Williams, supra note 34, at 56 (noting that scholars focus on the financial conflicts that affect physicians and medical researchers because (1) they are the most recognizable types of secondary interests, (2) they are likely to create the most tension with physicians' primary interests with harmful consequences on the physicians and researchers, and (3) financial conflicts may lead to decisions that lead to injury or death in patients or research subjects). 37. See CONFLICT, supra note 33, at 47 (noting how most secondary interests, including pecuniary interests, are legitimate and desirable goals for physicians); see also Williams, supra note 34, at 56 (observing that secondary interests are not necessarily illegitimate in and of themselves). 38. CONFLICT, supra note 33, at 47. The authors explain that secondary interests are objectionable only when they affect professional decision making. Id. See also Williams, supra note 34, at 56 (stating that the danger in secondary interests in patient care arise when they are in tension with the physician's primary interest as caregiver, and that this conflict may adversely affect the physician's professional judgment). 39. See Rodwin, supra note 27, at 246 (explaining that while physicians are held accountable by courts and the law for several categories of misconduct, with the exception of Moore v. Regents of the Univ. of Cal., 51 Cal. 3d 120 (1990), physicians are not held accountable by law regarding financial conflicts of interest). 2012]1 The PhysicianPayment Sunshine Act 969

Court held that a physician owed a fiduciary duty to his patient, and that the physician breached that duty by not disclosing his financial interests to the patient when the doctor used the patient's white blood cells for research and his own pecuniary gain.40 While physicians' conflicts of interests are generally not regulated by law or by courts, medical practitioners are still held to a high ethical standard.41 Professional organizations such as the American Medical Association have set forth strong ethical guidelines which strongly urge physicians to avoid conflicts of interest. 42 Despite these strong exhortations, conflicts remain pervasive, and continue to impact patients' care.

B. Substantial Secondary Interests-Big Pharma's43 Deep Pockets Big Pharma spends a substantial amount of money marketing directly to physicians. 44 Roughly $12 billion is spent on marketing

40. Moore v. Regents of the Univ. of Cal., 51 Cal. 3d 120, 125 (1990). In Moore, the plaintiff, Mr. Moore, had hairy cell leukemia. Id. He visited Dr. Golde, the defendant, at UCLA Medical Center in 1976 for treatment. Id. On Dr. Golde's recommendation and after Moore gave informed consent for the procedure, Moore underwent a splenectomy. Id. at 126. However, Dr. Golde failed to disclose his intent to use Moore's removed spleen for research purposes, which had no bearing on Moore's care. Id. After the procedure, Dr. Golde advised Moore to continue returning to UCLA Medical Center for ongoing care. Id. During the visits, Dr. Golde would extract blood and other fluids from Moore. Id. The continuing withdrawal of Moore's fluids had nothing to do with his care, but was conducted solely for purposes of Dr. Golde's research. Id. This went on for several years. Id. As a result of the research, Dr. Golde patented a cell line from Moore's white blood cells. Id. at 127. Dr. Golde and UCLA went on to profit substantially from the patent. Id. at 127-28. Moore sued Dr. Golde for, inter alia, breach of fiduciary duty. Id. at 128. See also Williams, supra note 34, at 53 (describing Moore as "the most significant U.S. case to date dealing directly with informed consent and financial conflicts of interest."). But see Rodwin, supra note 27, at 248 n.48 (pointing out that Moore is the exception to the general rule that physicians are not held to fiduciary standards with respect to financial conflicts of interest). 41. See AMA - Principles of Medical Ethics, Am. MED. ASs'N, available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code- medical-ethics/principles-medical-ethics.shtm1 (last visited Mar. 16, 2012) (stating in the Preamble that "[t]he following Principles adopted by the American Medical Association are not laws, but standards of conduct which define the essentials of honorable behavior for the physician."). 42. See id. (stating in the Preamble that "a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self . . .. A physician shall, while caring for a patient, regard responsibility to the patient as paramount."). 43. "Big Pharma" refers generally to the pharmaceutical industry. 44. See Amanda L. Connors, Big Bad Pharma: An Ethical Analysis of Physician-Directedand Consumer-DirectedMarketing Tactics, 73 ALB. L. REV. 243, 243 (2009) (stating that by "distribut[ing] free drug samples, skewed marketing materials, meals and more, the [pharmaceutical] industry engages 970 The John MarshallLaw Review [45:963 drugs annually. 45 While marketing to physicians has gone on for over half a century, pharmaceutical companies' outsized profits, coupled with their increasingly intense efforts to market their new and often expensive drugs, have brought increasing scrutiny on the effect that these efforts have on patient care. 46 While commentators mostly agree that partnerships between the pharmaceutical industry and physicians are essential to the development of new therapies, 47 the exorbitant amount of dollars at play between Big Pharma, physicians, and medical researchers raise concerns over whether medical decisions are being unduly affected by secondary financial considerations outside of the physician-patient relationship.

1. Big Pharma Marketing to Physicians The majority of Big Pharma's physician-focused marketing budget is spent on "detailing," whereby pharmaceutical representatives engage are sent directly to physicians to promote and market their companies' drugs.48 Promotion is done in several ways, such as giving small gifts, drug samples, and meals. 49 In a recent study, nearly all physicians surveyed reported that they had some kind of contact with a Big Pharma representative in the previous year.50 Four out of five physicians reported that they had in deception hidden by a veil of flattery and free gifts."). See also Sheldon Krimsky, Symposium: Academic Integrity: Combating the Funding Effect in Science: What's Beyond Transparency?,21 STAN. L. & POL'Y REV. 81, 92 (2010) (discussing Big Pharma's "symbiotic" relationship with physicians and research scientists, which encompasses the hiring of academics to conduct clinical trials, to recruit human test subjects, to test drugs, and directly engage with physicians through office visits and paying for continuing education, gift vacations and lucrative honoraria for speaking at Big Pharma- funded conferences). 45. Thomas L. Hafemeister & Sarah P. Bryan, Beware Those Bearing Gifts: Physicians' FiduciaryDuty to Avoid PharmaceuticalMarketing, 57 U. KAN. L. REV. 491, 492 (2009). The author notes that while there is no precise data on the amount of money invested by Big Pharma in marketing, credible estimates put the figure around $12 billion annually. Id. 46. Id. at 491-492. Another possible explanation for the increased level of scrutiny of financial relationships between physicians and pharmaceutical companies is the contention that physicians are more susceptible to outside payments as a result of physicians' average real income declining over the last several years. CONFLICT, supra note 33, at 167-69. To wit, the real income of physicians decreased by 7 percent between 1995 and 2003. Id. 47. CONFLICT, supra note 33, at 97-99. 48. Hafemeister & Bryan, supra note 45, at 493. 49. Id. See also Connors, supra note 44, at 256 (noting that the pharmaceutical industry uses several techniques to market to physicians; including targeting groups vulnerable to marketing, such as medical students and residents; personalizing sales pitches for individual physicians, and tracking physicians' individual prescription habits). 50. CONFLICT, supra note 33, at 172. Studies show that 94 percent of physicians reported having some kind of relationship with industry over the 2012]1 The PhysicianPayment Sunshine Act 971 received a free meal in the last year and received free drug samples from industry representatives.57 Another study showed that nearly two thirds of physicians reported receiving meals, travel, or entertainment on Big Pharma's dime.52 The number of Big Pharma representatives has skyrocketed since the mid-1990s, both in numerical terms as well as relative to the number of physician targets. 53 These representatives are well- trained, well-educated professionals who are extremely adept at marketing their products. 54 In addition to employing a highly skilled marketing force, Big Pharma companies spend over $20 million purchasing data on individual physicians' prescription habits to ensure that detailers can tailor their techniques to physicians' specific prescription habits.55 While physicians generally maintain that these marketing techniques have no effect on their judgment, evidence suggests otherwise.56 Big Pharma's marketing techniques have been shown to effectively sway physicians' prescribing decisions.5 7 A survey of physicians' prescribing habits found that physicians were significantly more likely to prescribe a drug after attending an all- previous year. Id. 51. Id. 52. Id. 53. See Rikin S. Mehta, Why Self-Regulation Does Not Work: Resolving Prescription Corruption Caused by Excessive Gift-Giving by Pharmaceutical Manufacturers, 63 FOOD & DRUG L.J. 799, 801 (2008) (noting that the number of pharmaceutical sales representatives more than doubled from 1996 to 2000, from 41,800 to 83,000, and grew to 100,000 by 2005, making about one rep for every six physicians); but see Hafemeister & Bryan, supra note 45, at 494-95 (stating that as of 2007, there were 100,000 pharmaceutical reps marketing to only 200,000 physicians). 54. Connors, supra note 44, at 256-258. The "always good-looking, overly- friendly, and stylish" sales representatives who are dispatched to market directly to physicians are well-trained in the use of both verbal and non-verbal cues in order to better persuade their targets. Id. See also CONFLICT, supra note 33, at 171 (stating that Big Pharma representatives use a variety of "interpersonal techniques to establish relationships with physicians to promote their [approach to their] products and may calibrate their assessments of the physician's personality and intellectual style."). 55. Hafemeister & Bryan, supra note 45, at 494-95. The number of detailer visits to physicians is determined by how often a physician prescribes drugs, with the most active prescribers receiving the most visits. Id. An AMA study found that physicians who prescribe 1 to 10 prescriptions per week are visited on average 2.33 times per week, while those who prescribe over 150 times per week are visited 8 times per week. Id. 56. Connors, supra note 44, at 265-66. While many physicians claim that they are immune to the marketing techniques of pharmaceutical companies, they are nevertheless suspicious of the effect of these techniques on their colleagues. Id. 57. See Mehta, supra note 53, at 804 (citing a study which concluded that "physicians exhibited a 'significant increase' in prescribing a company's drugs after attending an expense paid trip to a drug company's symposium"). 972 The John Marshall Law Review [45:963 expense-paid trip to attend the donor company's symposium. 5 8 But big-ticket trips are not the only way to influence prescribing habits. Gifts of any size or expense have been shown to subtly influence doctors' behavior.5 9

2. Big Pharma-SponsoredClinical Trials Big Pharma's funding of clinical research trials has received less public scrutiny than the industry's relationship with physicians.6 0 Despite the lack of attention, industry relationship with research universities and individual researchers nevertheless present issues that are important to the safety of human test subjects,6 1 as well as for the integrity of the professional practice itself.62 Big Pharma's relationship with the research community is relatively new compared with the relationship between Big Pharma and physicians growing out of drug marketing. 63 The passage of the Bayh-Dole Act64 in 1980 is regarded as the catalyst for the current relational framework between Big Pharma and the medical research community, because it allowed researchers and universities to receive automatic patents for inventions and research sponsored by the university.65 Big Pharma is now the

58. Id. 59. Connors, supra note 44, at 264-65. Gifts can create a feeling of reciprocity and obligation in physicians, even if on a subconscious level. Id. 60. Jeremy Olson & Paul Tosto, Critics Say Drug Firms' Payments to Doctors are Conflict of Interest, TWINCITIES.COM, http://www.twincities.com/ci_9316658 (last updated May 23, 2008, 5:27 PM). 61. See generally Elliott, supra note 2 (describing the circumstances under which Dan Markingson enrolled in a clinical trial funded by AstraZeneca, designed to test the side effects of three antipsychotic medications in schizophrenic test subjects); see generally Robin Fretwell Wilson, The Death of Jesse Gelsinger: New Evidence of the Influence of Money and Prestige in Human Research, 36 AM. J.L. & MED. 295 (2010) (telling of the circumstances of Jesse Gelsinger's death while enrolled in a clinical trial testing the effects of a gene therapy designed to treat ornithine transcarbamylase deficiency, a rare liver disease). 62. See Robert Freedman, et al., Commentary, Conflict of Interest - An Issue for Every Psychiatrist, AM. J. PSYCHIATRY, March 2009, available at http://ajp.psychiatryonline.org/cgi/content/full/166/3/274 (noting that the profession of psychiatry as a whole suffers from examples of pharmaceutical companies failing to report negative information about drugs critical to their safe use). 63. See Williams, supra note 34, at 57 (observing that private industry currently funds the majority of clinical research in universities, which is in stark contrast to before 1980, when the federal government funded most university-based clinical research). 64. University and Small Business Patent Procedures (Bayh-Dole) Act, 35 U.S.C. §§ 200-212 (1980). 65. See Williams, supra note 34, at 56-57 (noting that the passage of the Bayh-Dole Act is responsible for a substantial increase in revenue generated for universities, as well as for private laboratories). The Act resulted in 2012] The PhysicianPayment Sunshine Act 973 largest source of funding for biomedical research.66 The growth of the pharmaceutical industry-research relationship has led to an increasing number of researchers who own a financial stake in their research, as well as a proprietary stake in the company funding the research.67 Aside from benefitting the individual researchers and research institutions, society has benefitted from this collaboration by having access to new and effective drugs.68 Notwithstanding these benefits, this relationship threatens to create situations that can cause researchers to overlook their duties to their human test subjects in favor of the research results themselves.69 The growing custom of using clinical trial results as a marketing tool rather than for scientific gain has been described as a shift from "evidence-based medicine" to "marketing-based medicine."70 One practice lending credence to this theory is the manipulation of clinical trials' results in order to make drugs manufactured by the trials' sponsors appear more efficacious than they really are.7' Data shows that, when compared to trials funded university-generated patents growing from 250 a year previous to 1980 to over 4,800 in 1998. Id. See also Krimsky, supra note 44, at 81 (citing the passage of the Bayh-Dole Act as contributing to the partnership between research institutions and the pharmaceutical industry). 66. CONFLICT, supra note 33, at 101. Figures from 1995-2003 suggest that roughly 60 percent of annual total funding for clinical research came from Big Pharma, up from a range of 29 to 45 percent during 1977-1989. Id. 67. Williams, supra note 34, at 57-58. As a result of the growing relationships, researchers can now avail themselves of several new streams of revenue, including owning equity in the company sponsoring the research trial, serving as a scientific advisor to the company, payment by number of test subject recruits, and receiving speaking fees, otherwise known as honoraria. Id. 68. See CONFLICT, supra note 33, at 99-101 (explaining that Big Pharma funding supports laboratories of pharmaceutical, device and biotechnology companies, which are essential to discovering and developing new medications for health problems). 69. See infra notes 70-74 and accompanying text (describing the shift from "evidence-based medicine" to "marketing-based medicine"). 70. Glen I. Spielmans & Peter I. Parry, From Evidence-Based Medicine to Marketing-Based Medicine: Evidence from Internal Industry Documents, JOURNAL OF BIOETHICAL INQUIRY, 1, Jan. 21, 2010, available at http://i.bnet.com/blogs/spielmans-parry-ebm-to-mbm-jbioethicinqu-2010.pdf. The author notes that while "evidence-based medicine is a noble idea, marketing-based medicine is the current reality." Id. 71. Id. at 2. An internal memo from Big Pharma company, Pfizer, stated that the purpose of clinical trial data "is to support, directly or indirectly, marketing of our product." Id. But while the intersection of science and marketing is not always a problem, evidence shows that scientific integrity in clinical trial results have yielded to marketing goals. Id. Internal documents from AstraZeneca regarding what is known as "Study 15" illustrates this point. Shankar Vedantam, A Silenced Drug Study Creates an Uproar, THE WASH. POST, Mar. 18, 2009, available at http://www.washingtonpost.com/wp- 974 The John MarshallLaw Review [45:963 by neutral sponsors, clinical trial studies sponsored by pharmaceutical companies overwhelmingly yield more favorable results for the sponsoring company's drug. 72 The funding effect of clinical trials has engendered widespread suspicion of trial results published under Big Pharma sponsorship.7 3 Despite these trials' dubious credibility, the results are then published in journals and dyn/content/article/2009/03/17/AR2009031703786.html. The study was supposed to demonstrate the advantage of its antipsychotic drug, Seroquel, over an older and cheaper drug, Haloperidol. Id. But the Study 15 results painted a different picture, indicating that Seroquel actually was less effective than the older drug and that it caused significant weight gain. Id. Subsequent internal emails among AstraZeneca personnel speak of how to put a "positive spin" on the test results. Id. Another email mentions how an AstraZeneca doctor had done a "great 'smoke and mirrors' job!" with the results. Id. Yet two years after the emails, AstraZeneca officials presented different data to an American Psychiatric Association conference and a European meeting, showing that Seroquel had fared better in the clinical trials than Haloperidol. Id. 72. CONFLICT, supra note 33, at 104. Several reviews and studies have shown that industry-funded clinical trials are more likely to come out in favor of the trial sponsor. Id. One study found that clinical trials sponsored by the drug manufacturer or where the trial investigator has financial ties to the manufacturer are 3.6 times more likely to find that the drug tested was effective, as compared with clinical trials not sponsored by a manufacturer. Id. Another survey found that studies, which favored a drug were four times more likely to be funded by the drug manufacturer. Id. Still another study found that industry-funded studies were more likely to find that a particular drug was safe, even when there was a significant increase in adverse effects for that drug. Id. Williams, supra note 34, at 58. There is also evidence that articles published in symposia with drug company support were more likely to favor the drug of the sponsor than articles published independently of drug company influence. Id. In addition, a correlation exists between drugs recommended by clinical practice guideline authors when those authors have a relationship with the drug manufacturers. Id. 73. Elliott, supra note 2. In 2007 the results of the CAFE study were published. Id. The ten authors of the study were comprised of three AstraZeneca employees and seven physicians, many of whom consulted for AstraZeneca. Id. The authors claimed that despite five suicide attempts and two successful suicides (Dan Markingson being one of them), the study showed Seroquel to be of "comparable effectiveness" to the other two drugs tested in the study-Zyprexa and Risperdal. Id. Nevertheless, several medical professionals claimed that the study did not stand up to its scrutiny. For example, Dr. Peter Tyrer, editor of the British Journal of Psychiatry, pointed out the small sample size of the study, and commented that "[i]n scientific terms this study is of very little value." Id. Dr. John Davis, the Gillman Professor of psychiatry at the University of Illinois- Chicago, found it troubling that the study did not elaborate on the causes of why many patients dropped out of the study. Id. According to Dr. Davis, "[i]t does not make scientific sense to do a study and not measure one of the most important outcomes." Id. Finally, Dr. David Healy described the study as "a non-study of the worst kind," saying that "[i]t is designed not to pick up a difference between the three drugs. It looks like an entirely marketing-driven exercise." Id. 2012]1 The PhysicianPayment Sunshine Act 975 used by Big Pharma to market their products to physicians.74 The manipulation of clinical trials' results clearly diminishes the integrity of the trials, and ultimately endangers the health of patients to whom these drugs are prescribed. Big Pharma's funding of clinical trials, coupled with the industry's marketing techniques toward physicians, has prompted Congress to take action to expose the underlying financial relationship to the public in order to prevent such practices.75

III. ANALYSIS The impact of physician-Big Pharma ties on patient care has not escaped the American public's attention. In a 2008 survey conducted by the Pew Prescription Project, 64 percent of surveyed participants believed that it was important to know their physicians' financial relationship with the pharmaceutical industry. 76 Sixty-eight percent of respondents supported legislation requiring pharmaceutical companies to disclose gifts to physicians.77 In general, a vast majority of those surveyed disapproved of the current relational framework between the pharmaceutical industry and physicians.78 A handful of states took

74. Daniel Carlat, Dr. Drug Rep, N.Y. TIMES MAGAZINE, Nov. 25, 2007, available at http://www.nytimes.com/2007/11/25/magazine/25memoir-t.html. Dr. Daniel Carlat, a psychiatrist who practices in Newburyport, Massachusetts, wrote an article on his experiences as a detailer hired by Wyeth Pharmaceuticals to give talks on the benefits of using the Effexor XR for treatment of depression. Id. The talks often centered on Effexor's performance against competing drugs as shown in a Wyeth-sponsored clinical trial, namely that Effexor had a 10-percent advantage in remission rates over other comparable drugs. Id. However, Dr. Carlat acknowledges how his presentations were "highlighting Effexor's selling points and playing down its disadvantages," such as a 50 percent greater hypertension rate in Effexor users. Id. Dr. Carlat continued expounding Effexor's selling points even after learning of subsequent clinical trials, which showed results that Effexor's remission rates were not as positive as originally reported. Id. Reflecting on his talks, Dr. Carlat realized that he "had spun the results of the [Wyeth-sponsored] study in the most positive way possible," and "had not talked about the limitations of the data" by "tweaking and pruning the truth in order to stay positive about the product." Id. Dr. Carlat's internal ethical dilemma about fudging the study results reflected in less enthusiastic endorsement for the drug in his talks. Id. He resigned from his position as a Wyeth detailer, noting that, "I was paid to enthusiastically endorse their product . . [o]nce I stopped doing that, I was of little value to them, no matter how much 'medical education' I provided." Id. 75. See infra Part III.A (describing the Sunshine Act's stated purpose and substantive provisions). 76. Pew Prescription Project, CONSUMER SURVEY: DISCLOSURE OF PAYMENTS TO PHYSICIANS (June 16, 2008) http://www.prescriptionproject.org/tools/sunshinedocs/files/0010.pdf. 77. Id. 78. Id. Respondents to the survey disapproved of even small gifts to physicians. Id. For example, 86 percent of respondents thought free dinners 976 The John Marshall Law Review [45:963 notice and passed legislation mandating disclosure of industry payments to physicians.79 Congress joined the fight by enacting the Physician Payment Sunshine Provision in March of 2010 as part of the Patient Protection and Affordable Care Act.8 0 While the Sunshine Act allows for far more transparency in the currently opaque world of the industry-physician financial relationship, the question still remains whether greater transparency will lead to better patient care and enhance trust in physicians' decisions.

A. The PhysicianPayment Sunshine Act-Shedding Light on Industry-PhysicianFinancial Relationship

1. Intent Behind the Sunshine Act The Sunshine Act was first introduced in 2007 by Senator Charles "Chuck" Grassley (R-IA) and Senator Herbert "Herb" Kohl (D-WI) to create transparency in the financial relationship between the pharmaceutical industry and physicians.8 1 According to Senator Grassley, an "intricate network of financial ties" between Big Pharma and physicians, combined with a lack of transparency surrounding those relationships, obscure what was best for the patient. 2 To prove the lack of transparency under the then-current regulatory framework, Senator Grassley spoke of several academia-affiliated physicians who accepted, but did not disclose, millions of dollars from pharmaceutical companies while also conducting government-funded research on the drugs manufactured by those same companies.83 should be banned. Id. Eighty percent believed that "speaking fees should not be allowed." Id. Seventy percent believed that trinkets such as "pens and note pads should not be allowed." Id. 79. See Krimsky, supra note 44, at 93 (noting that Minnesota, Vermont, Massachusetts, Maine, West Virginia, and the District of Columbia have each enacted statutes which mandate that pharmaceutical companies disclose payments to physicians). 80. POLICY AND MEDICINE, http://www.policymed.com/2010/03/physicianpayment-sunshine-provisions-patient-protection-affordable-care-act.html (last visited Oct. 23, 2010). 81. 153 CONG. REC. 11,217-18 (2007). In his speech from the Senate floor, Senator Grassley described the need for transparency as "an important issue affecting all Americans who take prescription drugs or use medical devices." Id. 82. 155 CONG. REC. 787-88 (2009). Senator Grassley cited speaking honoraria, consulting fees, free travel to exotic locations, and funding for research as examples of these financial relationships. Id. 83. See 154 CONG. REC. 2,320 (2008) (explaining how industry payments to physicians influence medical practice). Senator Grassley reported that the Federal Government paid billions of dollars under various programs for the drug Seroquel, manufactured by AstraZeneca. Id. In doing so, the government relied in part on a published study which concluded that Seroquel was effective in treating bipolar disorder in children. Id. However, as Senator Grassley noted, the panel responsible for publishing the results of the study 2012] The PhysicianPayment Sunshine Act 977

The Sunshine Act's sponsors refuted the notion that the mandatory disclosures are meant to regulate the business of drug companies, or the amount that they spend to market their products. 84 They argued instead that the Act was necessary to deter against any improper industry-physician relationship since, as Senator Grassley observed, pharmaceutical companies would not spend billions of dollars marketing to physicians unless such action directly affected what drugs physicians prescribed.85 Indeed, the aim of the Act is two-pronged: (1) to help distinguish legitimate financial relationships from those that are improper, and (2) to notify patients of these relationships so that they can make better-informed decisions about their care.86

2. Sunshine Act's Substance The substantive provisions of the Sunshine Act will take effect on March 31, 2013.87 On this date, and on the ninetieth day based its recommendation on a single inconclusive study in which the half of tested subjects dropped out of the study. Id. Senator Grassley then discovered that Dr. Melissa DelBello, the lead author of the study and professor at the University of Cincinnati, had been paid $238,000 by AstraZeneca between 2005 and 2007. Id. Dr. DelBello only reported $100,000 of those earnings to the University, which was charged with the duty to monitor any potential conflicts of interests among its faculty. Id. Another notable example pointed out by Senator Grassley was that of Dr. Karen Wagner, professor at the University of Texas-Galveston and author of Study 329 on the effectiveness of GlaxoSmithKline drug Paxil. 154 CONG. REC. 8,166 (2008). Study 329 was later cited in a lawsuit against the company where positive results were promoted, but unfavorable results were not. Id. GlaxoSmithKline paid Dr. Wagner cumulatively over $70,000 in 2000 and 2001, when Study 329 was published. Id. The irony was that Dr. Wagner later served on the University's Conflict of Interest Committee from 2003 to 2004. Id. 84. 155 CONG. REC. 788 (2009). The Act does not seek to "outlaw" industry- physician relationships because many of them are appropriate and beneficial. Id. In his speech in support of the Sunshine Act, Senator Kohl begins by stating that "industry payments to physicians for research purposes or products they have helped develop are completely legitimate." Id. "Medical breakthroughs as a result of research have saved countless lives and could not have been achieved without the diligence of these [medical] professionals." Id. Senator Kohl also recognized that pharmaceutical companies have the right to spend as much as they want, without limit, on marketing their products. Id. 85. 153 CONG. REC. 11,218 (2007). In a later speech, Senator Grassley refers to the improper influence that industry payments to physicians may have, motivating physicians to modify treatment practices. 154 CONG. REC. 2,319-20 (2008). 86. 155 CONG. REC. 788-89. While conceding that most industry-physician relationships are proper, Senator Kohl states that "[t]ransparency will help to illuminate the difference between legitimate [relationships] and those that are questionable." Id. Senator Kohl also expressed his hope that the transparency provided by the Act will encourage patients to discuss concerns about any financial relationships in which their physician is involved. Id. 87. The Social Security Act, 42 U.S.C. § 1320a-7h(a)(1)(A) (2010). The 978 The John Marshall Law Review [45:963 of each subsequent year, all drug and medical device companies operating in the United States will have to disclose to the Secretary the amounts paid, items provided, and value given to any physician or teaching hospital during the prior year.88 Submissions will have to include the name and address of the recipient, dates of payment, payment amounts, and whether the payment was in money, stock or ownership in the donor company, or something else of value.89 The disclosing companies will also have to describe the purpose behind the payment.90 If the disclosed payment is related to marketing, education or research in regards to a specific drug or medical product, the company will be obligated to specify the name of that drug or product.91 Companies may delay disclosing payments for research associated with new drugs or medical products until the drug or product is approved by the Food and Drug Administration, or four calendar years after the date of the payment, whichever comes first.92 By September 30, 2013 and by June 30 of each subsequent year, the Secretary will be obligated to publish all the information disclosed by medical companies on a public, user-friendly website.93 Companies will be subject to fines ranging from $1,000 to $10,000 for each unreported payment, up to $150,000 per year. 94 A company that knowingly fails to report payments will be subject to fines ranging from $10,000 to $100,000, up to $1 million a year.95

B. Consequences of the Sunshine Act

1. Beneficial Consequences The Sunshine Act's transparency provisions will allow patients to peer into the previously obscured financial

Sunshine Act provision in the Patient Protection and Affordable Care Act was an amendment to the Social Security Act. Id. 88. 155 CONG. REC. 788. 89. Id. But despite the broad disclosures required by the Sunshine Act, some payments are exempt from disclosure. See § 1320a-7h(e)(10)(B) (stating that payments or transfers of value less that $10 are not subject to the disclosure requirements, as long as the total amount of such payments do not exceed $100). Pharmaceutical companies also are not required to disclose the value of free drug samples which are not intended to be sold. Id. 90. Id. Examples include payments for consulting fees, compensation for services besides consulting, honoraria, gifts, entertainment, food, travel, education, research, charitable contributions, royalties or licenses, ownership or investment interests, compensation for speaking at medical education programs, and grants. Id. 91. Id. 92. 42 U.S.C. § 1320a-7(c)(1)(E)(i). 93. Id. at (c)(1)(C). 94. Id. at (b)(1)(A)-(B). 95. Id.at (b)(2)(A)-(B). 2012] The PhysicianPayment Sunshine Act 979 relationships between physicians and pharmaceutical companies. 96 Several commentators, including those within the pharmaceutical industry, recognize that the Sunshine Act will enhance the physician-patient relationship by increasing the level of trust that patients have in their physicians.97 The Act will allow patients access to data pertaining to their physicians' ties with Big Pharma.98 The Act will also lend greater credibility to clinical trial results, since anyone can look to see if trial investigators maintain ties with drug companies whose drugs are being tested.99 Finally, it will give patients a bona fide opportunity to discover their physicians' financial relationships with the pharmaceutical industry without having to confront their physicians directly. 100

96. See supra text accompanying notes 76-81. 97. Johnson & Johnson Announces Support for Kohl-Grassley Physician Payments Sunshine Act of 2009, JOHNSON & JOHNSON (May 7, 2009), http://www.jnj.com/connect/news/all/20090507_130000. In voicing his support for the Sunshine Act, Johnson & Johnson CEO William C. Weldon, in a company press release, stated: "Greater transparency will enhance trust and recognition that collaborations between pharmaceutical and device manufacturers and physicians lead to important medical advances that save lives." Id. Weldon's statement echoes Senator Kohl's contention that the Act will augment trust within the physician-patient relationship: "Patients want to know that they can fully trust the relationship they have with their doctor." Id. 98. See Donald Brown, Provision of Health Care Reform Requires Drug Companies to Report Payments to Doctors, FIRST AMENDMENT COALITION (Mar. 25, 2010), http://wwwfirstamendmentcoalition.org/2010/03/provision-of- health-care-reform-requires-drug-companies-payments-to-doctors/ (stating that because patients will have access to industry payments their physicians receive from pharmaceutical companies, patients will be able to make more informed decisions about the advice from their physicians). 99. John Fauber, Surgeons Routinely Fail to Disclose Financial Ties, JSONLINE (Sept. 13, 2010), http://www.jsonline.com/features/health/102811174.html. A 2007 study of ninety-five articles authored by thirty-two surgeons found that only 46 percent of the authors disclosed major payments from industry. Id. The lack of disclosure substantially discounts the credibility of these studies. Id. Noting the exceeding difficulty of journals to identify industry payments to authors, the mandatory disclosures made pursuant to the Sunshine Act mean that such journals no longer need to rely solely on self disclosures from authors. Id. Rather, journals can independently discover whether such authors are recipients of large payments from industry companies, and therefore subject to skewing data in favor of those donors. Id. 100. Ibby Caputo, ProbingDoctors' Ties to Industry, THE WASH. POST, Aug. 18, 2009, available at http://www.washingtonpost.com/wp- dyn/content/article/2009/08/17/ AR2009081702090.html. While most patients do believe that it is important to know the extent of their physician's ties to industry, confronting one's physician about such ties is "a genuinely difficult and awkward conversation to have," according to Allan Coukell, director of the Pew Prescription Project. Id. Patients fear that challenging their physicians could lead to an antagonistic relationship. Id. For this reason, patients are not likely to broach the subject with their physicians, according to Steve Nissen, chairman of the Department of Cardiovascular Medicine at the Cleveland 980 The John Marshall Law Review [45:963

The easily searchable and downloadable format of the data offers a marked improvement over the recent voluntary disclosures of some pharmaceutical companies. 101 While voluntary disclosures by individual companies demonstrate a willingness to be open about their relationships with physicians, they have also been derided as being of limited value.102 Companies publish their disclosures in PDF format, making viewing and organizing the data unduly onerous. 103 Furthermore, voluntary disclosures do not provide the purpose behind the payments.104 Because voluntary disclosures often show payment amounts that appear lower than expected, some find them untrustworthy. 105 An impartial national database that allows users to easily search, aggregate, and download data on industry payments to physicians would remedy

Clinic. Id. Citing this reticence, Nissen notes that greater transparency would benefit patients the most. Id. 101. 42 U.S.C. § 1320a-7h(c)(1)(C). 102. Duff Wilson, Data on Fees to Doctors Is Called Hard to Parse, N.Y. TIMES, Apr. 12, 2010, available at http://www.nytimes.com/2010/04/13/business/13docpay.html?fta=y. In evaluating the disclosures on industry companies' websites, John Mack, editor or the Pharma Marketing blog, noted that they are "[miore translucent than transparent." Id. 103. Id. An Eli Lilly spokesperson has stated that the data was published in such a way in order to protect the data's integrity. Id. However, the format of the disclosures makes it nearly impossible to aggregate the money paid to a doctor from several sources, identify the biggest recipients, or list recipients by hospital or city. Id. 104. See Daniel Carlat, The Physician Sunshine Act: Time for Hired Guns to Scatter, THE CARLAT PSYCHIATRY BLOG (Mar. 26, 2010), http://carlatpsychiatry.blogspot.com/ 2010/03/physician-sunshine-act-time-for- hired.html (noting that voluntary disclosures made by pharmaceutical companies do not adequately categorize payments to physicians, but merely list the physician donee and the amount given). Dr. Daniel Carlat illustrates the strength of the Sunshine Act as compared to voluntary disclosures by explaining how Eli Lilly's registry allows one to discover that a recipient physician "made $50,000 in 2009 performing healthcare professional education programs." Id. But under the Sunshine Act, the website will give greater detail by publishing that the physician was paid "$50,000 for marketing Zyprexa in 2009." Id. Dr. Carlat also notes that payments will be broken down by date, so that a patient can see not only how much his or her physician was paid to market the drug that the physician prescribed, but also how soon before or after the payment was made. Id. 105. Duff Wilson, Pfizer Gives Details on Payments to Doctors, N.Y. TIMES (Apr. 1, 2010), http://www.nytimes.com/2010/04/01/business/01payments.html. While expressing surprised approval of Big Pharma's disclosure efforts, Dr. Marcia Angell, former editor of the New England Journal of Medicine, noted what seemed to be low payment numbers on Pfizer's registry, saying that "I can't help but think something has escaped." Id. Eric G. Campbell, lead author of a 2007 study of physician-industry relationships published in the New England Journal of Medicine, stated that he puts "absolutely no trust in what drug companies voluntarily disclose to the public when those things are unaudited." Id. 2012]1 The PhysicianPayment Sunshine Act 981 the shortcomings of companies' voluntary efforts. There is evidence that mandatory disclosures will diminish the amount of money that Big Pharma spends on physicians. Both Minnesota and Vermont have enacted their own transparency measures, resulting in declining payments from Big Pharma to physicians and researchers. 0 6 For example, Dr. S. Charles Schulz, the chairman of University of Minnesota's psychiatry department who also oversaw the AstraZeneca clinical trial that led to Dan Markingson's suicide, only received $9,546 in 2008 from Eli Lilly.107 This amount is dwarfed by the $500,000 that Dr. Schulz received from 2003 to 2007.108 The data, as well Dr. Schulz's example, underscores the underlying goal of the Sunshine Act: to deter these financial relationships when there is an appearance of improper influence. 109

2. Negative Consequences Predictably, some within the medical and pharmaceutical communities have criticized the Act's transparency provisions. There are those that believe that the mandatory disclosures are overly broad, and the result of just a handful of "bad apples" when compared to the vast number of industry-physician and researcher relationships which yield beneficial medical results.1 10 Some even

106. See Jeremy Olson, Pharmaceutical Companies Spending Less on Minnesota Doctors, NALRX (June 15, 2009), http://www.twincities.com/ci 12573822?IADID=Search-www.twincities.com- www.twincities.com&nclick check=1 (stating that Minnesota physicians received millions of dollars less in payments from pharmaceutical companies in 2008 than in each of the five previous years). Public scrutiny on such payments increased after publication of these payments by watchdog groups and journalists. Id. See also Arlene Weintraub, New Health Law Will Require Industry to Disclose Payments to Physicians, KAISER HEALTH NEWS (Apr. 26,2010), http://www.kaiserhealthnews.org/Stories/2010/ April/26/physicianpayment-disclosures.aspx (noting that industry payments to Vermont physicians dropped 13 percent in 2009 from the time reporting of such payments became mandatory in 2002). 107. Olson, supra note 106. 108. Id. 109. Reed Miller, Let the Sunshine in: TCTDocs Debate PurifyingPhysician Relationships with Industry, THE HEART.ORG (Oct. 1, 2010), http://www.theheart.org/ article/1130139.do. Dr. Richard Popp, professor at Stanford University, approves of the deterrent effect of the Sunshine Act, noting that "[aill of this 'sunshine' is good because if you're embarrassed by the relationship you have with industry, you shouldn't be having it." Id. 110. Thomas Sullivan, Physician Payment Sunshine Act: Nature's Unintended Consequences, POLICY AND MEDICINE (July 16, 2010), http://www.policymed.com/ physician-payment-sunshine-act/. While Senator Grassley's investigations have uncovered some cases where disclosure discrepancies and conflicts existed, those examples are the exception. Id. Dr. Mininder Kocher, associate professor of orthopedic surgery at Harvard Medical School, believes that "there probably is only a minority of surgeons who intentionally did not disclose" payments to their university employers. Id. 982 The John Marshall Law Review [45:963 suggest that publication of financial information will only inflame negative public sentiment regarding these partnerships while ignoring the benefits.' There are still others who fear that the cost of compliance11 2 and the stigma of physicians being viewed as "conflicted" will lead to recruitment problems for clinical trial studies.113 This could ultimately lead Big Pharma companies to conduct their research and clinical trials in other countries, thus avoiding the Sunshine Act's compliance measures. 114 In addition to the grumblings from the pharmaceutical and medical communities, there are those on the other side of the coin that contend that the provisions of the Sunshine Act do not go far enough. For example, some argue that the monetary penalties levied on uncooperative companies are inadequate. 115 Several of the pharmaceutical companies whose payments inspired the Act reap billions of dollars in profits per year, and are accustomed to paying large court settlements as a cost of doing business.116 The

111. Id. Some in industry believe that disclosure only perpetuates the myth that all industry-physician relationships have negative consequences for the patient. Id. Michael Gonzalez-Campoy, CEO for Minnesota Center for Obesity, Metabolism and Endocrinology, believes that "a lot of harm comes from the implication that doctors are corruptible, that they don't do what they think or know is best for their patients." Id. 112. Oriana Schwindt, Sunshine Laws Stump Compliance Departments, PHARMEXEC.COM (Apr. 28, 2010), http://pharmexec.findpharma.com/pharmexeclarticle/ articleDetail.jsp?id=667301. A survey of persons working in compliance departments in pharmaceutical, biomedical and medical device companies anticipate that their employers will farm out the compliance requirements to third party companies, which they believe will increase the overall cost of compliance. Id. 113. Sullivan, supra note 110. Joel Martin, President and CEO of Altair Therapeutics, a medical device manufacturer, fears that disclosures could lead to "a strong backlash against pharma, which will cause more academics to bow out of industry relationships." Id. Along the same lines, Dr. Antonio Hardan, associate professor of psychiatry at Stanford University, believes that "academia will be losing more and more smart people, because of its growing anti-industry sentiment." Id. A study of 200 active physician research investigators found that 24 percent are less likely to continue to do so if their income is publicly disclosed. William Sharbaugh, Implications of Physician Payment Act, APPLIED CLINICAL TRIALS (Oct. 1, 2010), http://appliedclinicaltrialsonline.findpharma.com/appliedclinicaltrials/CRO%2 FSponsor/Implications-of-Physician-Payment- Act/ArticleStandard/Article/detail/690489. 114. See Sullivan, supra note 110 (noting that the anti-industry culture is causing research, development and commercialization of medical products to move to other places outside of the United States). 115. See supra notes 90-91 and accompanying text. 116. See Nathaniel Whittemore, Here Comes the Sun?: Sunshine Act Attempts to Improve Transparency in Doctor-Pharma Relationships, CHANGE.ORG (June 24, 2010), http://socialentrepreneurship.change.org/blog/view/here-comesthe-sunsunsh ineactattemptstoimprovetransparencyjin doctor-pharmarelationships 2012] The PhysicianPayment Sunshine Act 983 lack of a substantial deterrent effect has caused some to call for criminal penalties that entail prison time for instances of noncompliance.117 It is also notable which payments the Sunshine Act does not require industry companies to disclose. While the Act requires disclosures to physicians and teaching hospitals, 18 companies are not required to disclose payments to advocacy groups and professional organizations, some of which are quite powerful and exert substantial influence over physicians.119 While one of the Sunshine Act's purposes is to expose financial influences that may affect care, the absence of a disclosure requirement for payments to professional and advocacy groups leaves a gaping hole in the Act. Finally, the question remains whether the Act will actually enhance patient care and trust. The physician-patient relationship is defined by the power that the physician holds over the patient by virtue of his or her expertise and knowledge and the patient's

(acknowledging that the maximum fines in the Sunshine Act do not give a convincing reason to comply in an industry that regularly pays billions of dollars in fines for engaging in illegal marketing tactics and health care fraud). See also Roy M. Poses, M.D., Deferred ProsecutionAgreements End, So let the Payments Grow, HEALTH CARE RENEWAL (June 17, 2010), http://hcrenewal.blogspot.com/2010/06/deferred-prosecution-agreements-end- so.html (arguing that limiting punishments of health care organizations for misconduct to corporate fines and "deferred prosecution agreements" do not deter further misconduct). 117. Poses, supra note 116. On the lack of a deterrent effect for corporate fines levied against medical device manufacturers who have violated the law, Dr. Charles D. Rosen, president of the Association for Medical Ethics, believes that "[n]othing will change until someone goes to jail. It's a big game." Id. 118. See supra note 83 and accompanying text. 119. See Alison Bass, The Troubling Link Between Big Pharma and the American Psychiatric Association, THE FASTER TIMES (Mar. 30, 2010), http://thefastertimes.com/healthinvestigations/2010/03/30/the-troubling-link- between-big-pharma-and-the-american-psychiatric-association/ (noting that disclosure of payments to all medical personnel and medical organizations is a shortcoming of the Sunshine Act). Bass points out that the National Alliance for the Mentally Ill, regarded as the most powerful advocacy group representing the interests of those with mental illness, received millions of dollars in funding from pharmaceutical companies, which "no doubt spurred this group's embrace of potent psychoactive drugs over alternative methods of treating mental illness." Id. Another noteworthy potential conflict of interest that cries out for disclosure is that of the American Psychiatric Foundation (APF) and the American Psychiatric Institute for Research and Education (APIRE), "two of the philanthropic arms" of the American Psychiatric Association (APA). Id. The majority of the boards of APF and APIRE are comprised of pharmaceutical executives and practicing psychiatrists with financial ties to pharmaceutical companies. Id. The APA is a powerful lobbying force in Washington, D.C., and also publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM), or the "diagnostic bible of psychiatry." Id. A proposed updated version of the DSM broadens categories of various disorders, which would create new markets for drug companies. Id. 984 The John Marshall Law Review [45:963 trust that the physician will care for the patient with his or her interests at heart.120 Only a third of people would question a physician on his or her financial ties with pharmaceutical companieS. 121 This reluctance is a by-product of the physician- patient relationship, where the patient is more accustomed to receiving and following the physician's advice rather than questioning the physician's motives. Under the Sunshine Act, patients will have the option of finding a physician who does not take money from pharmaceutical companies. But the search for a physician unaffiliated with the pharmaceutical industry may carry unintended consequences. For example, pharmaceutical companies typically recruit the most distinguished physicians in their respective fields to market their drugs. 122 At some point, a patient will have to choose between a physician at the top of his profession, but encumbered with significant financial relationship with Big Pharma, and one who is not as highly regarded, but takes no Big Pharma money. This is not meant to insinuate that only competent physicians accept payments from Big Pharma.123 But, at some point, a patient may be in such a position and have to make a choice between a highly regarded physician who accepts Big Pharma money, and a less highly regarded physician who does not. It is doubtful that the Sunshine Act's proponents contemplated this predicament, yet it is a scenario that may nevertheless occur. If there is a commitment to mitigate financial conflicts of interests, more must be done to protect patients' care.

IV. PROPOSAL The Sunshine Act makes previously hidden financial relationships open for all to see. The Act was passed with the purpose of rebuilding physicians' trust in physicians by encouraging frank discussions about physicians' financial

120. See supra notes 24-30 and accompanying text. 121. See Caputo, supra note 100 (noting how only 34 percent of recent survey respondents said they would ask their physician about financial ties to pharmaceutical companies). 122. Carlat, supra note 74. Dr. Carlat notes that 25 percent of physicians are asked to speak for or are employed by pharmaceutical companies, and are flattered to have been recruited. Id. According to Dr. Popp, a physician consulting for industry is regarded as a positive, which "means that they're considered an expert, somebody values their intellect and contributions, and usually the faculty want[s] to go work with industry . . . ."Miller, supra note 109. 123. For example, a group of health care providers have established No Free Lunch, an organization guided by the principle that pharmaceutical marketing should not dictate clinical practice. See No FREE LUNCH, http://www.nofreelunch.org/aboutus.htm (last visited Nov. 4, 2010) (providing a short recitation of the organization's mission and goals). 2012]1 The Physician Payment Sunshine Act 985 relationships. 124 But this theory is undermined when one takes an honest look at the power structure in the typical physician-patient relationship. 125 It is therefore clear that the Act will not fully achieve its goal of more effective patient care.126 To accomplish that, the transparency and penalty provisions must be strengthened and be better-tailored to the intricacies of the physician-patient relationship.127 Three things must occur to remedy the Sunshine Act's shortcomings. First, the Act's range of covered professionals must be enlarged to include all professional medical associations and advocacy groups. Second, to encourage compliance and to punish companies for not complying, penalties for not disclosing should be raised significantly. Thirdly, and most importantly, physicians should be required to disclose their financial relationships with pharmaceutical companies to their patients when the physician reasonably believes that the patient would find such information important when deciding to take the physician's therapeutic advice.128

124. See supra note 81 and accompanying text. 125. See supra notes 115-117 and accompanying text. 126. See supra Part III.B.2. 127. Id. 128. See, e.g., CONFLICT, supra note 33, at 184 (recommending that in order for clinical physicians to avoid conflicts of interest in patient care, physicians should not accept any items of value from pharmaceutical companies unless the transaction involves a payment for services at fair market value). In discussing the effect that financial conflicts of interest have on the physician- patient relationship, many members of the academia and of the public have called for severely limiting or outright banning payments from pharmaceutical companies to physicians and medical researchers. Id. See id. at 117-118 (recommending that research institutions prohibit recipients of pharmaceutical company payments from conducting clinical research testing the effects of that drug); see also Andrew L. Younkins, The Physician Payments Sunshine Act and the Problem of Pharmaceutical Companies' Influence Over PrescribingPhysicians, SELECTEDWORKS 2 (2008), available at http://works.bepress.com/cgil viewcontent.cgi?article=1000&context=andrew-younkins (concluding that because the Sunshine Act is a "poor way to deal with physician conflicts of interest," the "only real" solution to solve the problem is to prohibit all pharmaceutical gifts and sponsorships of physicians' activities); see also Editorial, Limit Pay Docs Can Get from Drug Firms, CHI. SUN-TIMES, Jan. 10, 2010, at A26 (acknowledging the benefits of the Sunshine Act, the editor, nevertheless, concludes that transparency is not enough to cure the ills of financial conflicts, and calls on medical schools, hospitals and professional organizations to limit the amount of profit a physician is allowed to make from a relationship with pharmaceutical companies). However, passing legislation severely limiting or prohibiting any such payment paints with an overly broad brush, when one factors the benefits that come from industry-physician relationships, such as discovering new medical innovations. See supra note 46 and accompanying text. Because severely limiting industry-physician relationships will come at the cost of such innovations, less restrictive means of regulating these relationships are appropriate. 986 The John Marshall Law Review [45:963

A. Expanding the Sunshine Act to Cover Payments to Medical Organizationsand Advocacy Groups The Sunshine Act mandates the disclosure and publication of pharmaceutical payments to physicians and teaching hospitals with the aim of mitigating against the detrimental impact that Big Pharma money has on patient trust and care. 129 To the extent that transparency of these financial relationships will deter against physicians being improperly influenced by outside interests, the Act achieves this goal. However, the absence of reporting requirements for payments to others that impact patient care- namely, medical organizations and advocacy groups-ignores the influence that these two groups hold.so Indeed, some of these groups readily acknowledge these relationships with the pharmaceutical industry and advertise their role in developing new treatments. 131 These relationships can lead to beneficial and innovative results in the development of new drugs and treatments, similar to the benefits that come from industry- physician synergy. Pharmaceutical companies have used these relationships as a marketing tool to target specific patient groups, just as they targeted physicians.132 Professional organizations and advocacy groups wield significant influence over which treatments their members prescribe and purchase. The intent behind the Sunshine Act was to give patients a way to peer into the financial relationship between pharmaceutical companies and the physicians whom they trusted to dispense honest medical

129. See supra notes 80-81 and accompanying text. 130. See supra note 114 and accompanying text. 131. See Beryl Lieff Benderly, Advocacy Groups are Crucial Players in Developing New Neurotherapies, J. OF THE AM. SOC'Y FOR EXPERIMENTAL NEUROTHERAPEUTICS (Oct. 2004), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC534956/ (noting that advocacy groups play a crucial role in bringing new neurotherapeutics to market through exerting influence on the drug development process). See also Chapel Hill, PharmaceuticalAdvocacy Relations: Building Strong Connections Drives Product Awarenss, BUSINESS WIRE (June 1, 2004), http://findarticles.com/p/articles/ mi_mOEIN/is_2004_Oct_6/ain6224256/?tag=content;coll (reporting on the close links developed between pharmaceutical companies and patient advocacy and professional groups). Tactics used by pharmaceutical companies include using senior management to advance key issues with advocacy groups and professional organizations, and aligning patient advocacy relationship efforts with marketing and medical departments. Id. 132. See Evelyn Pringle, Tracking the American Epidemic of Mental Illness - Part IV, SCOOP INDEPENDENT NEWS (June 22, 2010, 3:27 PM), http://www.scoop.co.nz/stories/ HL1006/S00162.htm (claiming that pharmaceutical manufacturers spend millions of dollars a year to patient advocacy organizations, in return for their help in marketing the companies' drugs to their members). 2012] The PhysicianPayment Sunshine Act 987 advice.133 The same principle supports the position that pharmaceutical companies' payments to these organizations and groups, given their influence on their members, should be treated similarly.

B. Sunshine Act Penalties Will Not Deter Companies From Noncompliance Selling pharmaceutical drugs is big business. In 2009, the top ten pharmaceutical companies in the world collectively turned a profit of close to $75 billion.134 These profits come at a price. The amount of money that Big Pharma companies routinely pay in settlements or government fines for acts arising out of their wrongdoing is staggering, sometimes reaching into the multi- billion dollar range.135 In light of pharmaceutical companies' large settlements and larger profit margins, the Act's penalties are too small to encourage compliance. To encourage compliance and best effectuate the purpose of the Act, the fines for not reporting must be raised substantially from their current levels. This Comment proposes that the current penalties are raised ten-fold. For example, the penalty range for each instance of not reporting a payment should be raised to between $10,000 and $100,000, with an annual cap of $1.5 million. For knowing failures to report payments, the penalty range should be raised to between $100,000 and $1 million, with an annual cap of $10 million. While these fines are still relatively small when compared to the industry's profits, they more appropriately represent Congress's commitment to transparency and rebuilding the public's trust in their physicians. But because of the demonstrated limited effect that fines have on mitigating bad corporate behavior, this Comment proposes that egregious, continuous, and knowing failures to

133. See supra Part II.A.1-2. 134. See Global 500, Industries:Pharmaceuticals, FORTUNE MAGAZINE, July 20, 2009, available at http://money.cnn.com/magazines/fortune/global500/2009/industries/ 21/index.html (listing the top twelve pharmaceutical companies for the year 2009). 135. See Big PharmaLawsuits - Who Got Hit With the Biggest Settlement?, LAWYERSANDSETTLEMENTS.COM (Oct. 25, 2010), http://www.lawyersandsettlements. com/blog/big-pharma-lawsuits-who-got- hit-with-the-biggest-settlement-05310.html (listing some of the highest settlement amounts for various law violations). Some of the more notable settlements include: Eli Lilly was fined $1.4 billion by the U.S. Dept. of Justice, for violations arising out of marketing its drug Zyprexa in 2009; Pfizer was charged with $2.3 billion by the U.S. Dept. of Justice for off-label marketing in 2009; Allergan was fined $600 million by the U.S. Dept. of Justice in 2010 for "off-label use of Botox for headaches, pain, and cerebral palsy." Id. 988 The John MarshallLaw Review [45:963 report, or affirmative attempts to misrepresent disclosures should carry a criminal penalty, including possible prison time. 36 The public's need to discover industry-physician relationships is of the utmost importance to restore patients' trust.'37 Undermining that interest is worthy of a harsher penalty under the law.

C. Physicians Should Have the Duty to Disclose Financial Relationships with PharmaceuticalCompanies The Sunshine Act unquestionably provides more transparency into the financial relationship between physicians and pharmaceutical companies than ever before.138 The intent behind the Act was to encourage conversations between patients and their physicians by allowing patients to broach the subject with their physicians. 39 But under the contours of the physician- patient relationship, it is unlikely that patients will have the courage to interrogate their physicians.140 The Act can also help create situations where patients are left with a less than optimal choice of selecting between more qualified, but highly "conflicted" physicians, and those that are less qualified, but who take less or no pharmaceutical money.141 The best way to resolve this imbalance would be to require physicians to disclose their financial relationship to patients when the advice or prescription given falls within the field of a secondary relationship. Patients overwhelmingly believe that knowledge of their physicians' financial relationship with outside interests is important.142 Evidence of the impact that such relationship has on

136. Andrew Jack, Drugmakers Face Rising Fines and Sentences, FINANcIAL TIMES (Oct. 27, 2010, 8:27 PM), http://www.ft.com/cms/s/0/9fd969 10-elf9-1 1df-a064-00144feabdcO.html. The fine amounts imposed on pharmaceutical companies have been derided as merely "the cost of doing business," by Neil Getnick, an attorney who won a $750 million dollar settlement from GlaxoSmithKline for marketing failures. Id. Fines are becoming less effective in preventing pharmaceutical industry abuses; Getnick believes that criminal penalties may be appropriate. See also Bruce Lehr, Big Pharma Absorbs $5 billion in Fines! "The Cost of Doing Business!", THE BIG RED BIOTECH BLOG (Oct. 2, 2010), http://thebigredbiotechblog.typepad.com/the-big-red-biotech- blog/2010/10/pharmagossip-5-billion-in-fines-the-cost-of-doing-business.html (contending that the regulatory system which penalizes pharmaceutical companies for deceptive practices by the imposition of large fines has engendered the view among these companies that payment of these fines is a standard business practice). 137. See supra notes 77-81 and accompanying text. 138. Id. 139. See supra notes 80-81 and accompanying text. 140. See supra notes 115-16 and accompanying text. 141. See supranotes 117-18 and accompanying text. 142. See supra note 71 and accompanying text. 2012] The Physician Payment Sunshine Act 989 patient care is abundant. 143 Physicians should have the duty to disclose to their patients the nature of their financial relationship when a patient's knowledge of the physician's relationship would be important to his or her decision-making. A patient's knowledge of his physician's relevant financial relationship affects the credibility of the physician's advice and prescription habits. 144 A physician's duty to inform her patient will better ensure that the patient will make a more informed decision in electing to take the physician's recommended course of treatment. The public regards physicians' financial relationships as a matter of great importance. 145 This affirmative duty will alleviate the anxiety that most patients feel about approaching this topic, and it will mitigate against improper physician-Big Pharma financial relationships, since physicians will engage only in financial relationships that they are comfortable enough to discuss with their patients.

V. CONCLUSION The Physician Payment Sunshine Act is a significant legislative achievement, mandating that previously hidden payments to physicians be published for all to see. It will go a long way in deterring improper relationships between physicians and Big Pharma. It also has the potential to empower patients with information that will enhance the level of medical care they receive. But to better diminish the impact of secondary financial interests, more action must be taken.

143. See supra notes 56-57 and accompanying text. 144. Canterbury v. Spence, 464 F.2d 772, 779-94 (D.C. Cir. 1972). The doctrine of informed consent in patient care was explored in Canterbury. Id. While the facts of that case involve a physician not informing his patient of a risk of paralysis from needed back surgery, some of the same principles on a physician's duty to disclose information to his or her patient are still relevant in this context. Id. at 776. In holding that the physician did have a duty to inform his patient of the risks involving the procedure, Judge Robinson elucidated some important concepts with respect to the doctrine of informed consent. Id. at 779. The most important one is that "every human being of adult years and sound mind has a right to determine what shall be done with his own body ..... Id. at 780. Because most patients have little or no medical knowledge, there is a need for physicians to reasonably inform patients to make such therapeutic decisions possible. Id. Judge Robinson also recognized that in addition to the duty to treat a patient skillfully, the physician also labors under the duty to disclose information when the "exigencies of reasonable care call for it." Id. at 781. This includes the need to disclose the obligation to advise the patient of the need for or desirability of an alternative treatment than the one being pursued. Id. 145. See supra notes 72-4 and accompanying text. 990 The John Marshall Law Review [45:963 BACKISSUES

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Vol. 34 No. 1 Dean Robert Gilbert Johnston, Louis Biro: A Remembrance; Robert MacCrate, Keynote Address; Scott Brewer, On the Possibility of Necessity in Legal Argument: A Dilemma for Holmes and Dewey; Joel R. Cornwell, Languages of a Divided Kingdom: Logic and Literacy in the Writing Curriculum; Linda Ross Meyer, Why Barbara, Celarent, Darii, and Ferio Flunk out of Law School: Comment on Scott Brewer, On the Possibility of Necessity in Legal Argument; Elizabeth Mertz, Teaching Lawyers the Language of Law: Legal and Anthropological Translations; Susan F. Hirsch, Making Culture Visible: Comments on Elizabeth Mertz's Teaching Lawyers the Language of Law: Legal and Anthropological Translations; Brook K. Baker, Language Acculturation Processes and Resistance to In"doctrine"ation in the Legal Skills Curriculum and Beyond: A Commentary on Mertz's Critical Anthropology of the Socratic, Doctrinal Classroom; Jane B. Baron, Language Matters; Jane E. Larson, "A Good Story" and "The Real Story',- Kathryn M. Stanchi, Exploring the Law of Law Teaching: A Feminist Process; Regina Austin, Contextual Analysis, Race Discrimination, and Fast Food; Reginald Leamon Robinson, Race Consciousness: Can Thick, Legal Contextual Analysis Assist Poor, Low- Status Workers Overcome Discriminatory Hurdles in the Fast Food Industry? A Reply to Regina Austin; Charles R. Calleros, In the Spirit of Regina Austin's Contextual Analysis: Exploring Racial Context in Legal Method, Writing Assignments and Scholarship; Sonali Das, Silencing Speech in the Workplace: Re-examining the Use of Specific Speech Injunctive Relief for Title VII Hostile Environment Work Claims; Deana Saxinger, Cash Balance Plans: They Work For Employers But Do They Work For Employees?; Angel M. Traub, The Wall is Down, Now We Build More: The Exclusionary Effects of Gated Communities Demand Stricter Burdens Under the FHA

Vol. 34 No. 2 Marshall J. Hartman & Stephen L. Richards, The Illinois Death Penalty: What Went Wrong?; Steven Clark, ProceduralReforms in Capital Cases Applied to Perjury; Sharone Levy, Righting Illinois' Wrongs: Suggestions for Reform and a Call for Abolition; Stephen L. Richards, Reasonable Doubt Redux: The Return of Substantive Criminal Appellate Review in Illinois; Wayne T. Westling, Something is Rotten in the Interrogation Room: Let's Try Video Oversight; William G. Andreozzi, Prohibiting the Deduction for Non-Corporate Tax Deficiency Interest: When Treasury Goes Too Far; Marilyn Lablaiks, Bad Medicine: ERISA's Equitable Remedies and the Preemption of Fundamental Legal Rights; Courtney Perkins, The Seattle Art Museum: A Good Faith Donee Injured in the Restoration of Art Stolen During World War II

Vol. 34 No. 3 Mandy DeFilippo, You Have the Right to Better Safeguards: Looking Beyond Miranda in the New Millennium; Michael P. Seng, Reflections on When "We, the People" Kill; Stephen Brooks, Does a Life Insurance Subtrust Create a Prohibited Assignment Within a Qualified Plan; Thomas A. Gionis, Paradox on the High Seas: Evasive Standards of Medical Care - Duty Without Standards of Care; A Call for the International Regulation of Maritime Healthcare Aboard Ships; Sarah Lindley, Violence and Injury in Illinois Schools: Students Deserve a Remedy; Ako Miyaki-Murphy, In the Wake of Crosby v. National Foreign Trade Council: The Impact Upon Selective Purchasing Legislation Throughout the United States

Vol. 34 No. 4 Doris Estelle Long, First, "Let's Kill All The Intellectual Property Lawyete!"- Musings on the Decline and Fall of the Intellectual Property Empire; Janice M. Mueller, Patenting Industry Standards; William T. Fryer, III, Trademark Product Appearance Features, United States and Foreign Protection Evolution: A Need for Clarification and Harmonization; Donald L. Zuhn, Jr., DNA Patentability: Shutting the Door to the Utility Requirement; Ted L. Field, Computer-Aided Drug Design Using Patented Compounds: Infringement in Cyberspace?; Karl Maersch, ICANN't Use My Domain Name? The Real World Application of ICANN's Uniform Domain-Name Dispute Resolution Policy; Jason Green, Is Zippo's Sliding Scale a Slippery Slope of Uncertainty? A Case for Abolishing Web Site Interactivity as a Conclusive Factor in Assessing Minimum Contacts in Cyberspace

Vol. 35 No. 1 John H. Clough, Federalism: The Imprecise Calculus of Dual Sovereignty; Karl Moltzen, The Jury Poll and a Dissenting Juror: When a Juror In a Criminal Trial Disavows Their Verdict in Open Court; Frances Howell Rudko, Pause at the Rubicon, John Marshall and Emancipation: Reparations in the Early National Period?; Petr Pithart, The World After Terrorism; April L. Foreman, Web of Manipulation: The Learned Intermediary Doctrine and Direct-to-Consumer Advertising on the World Wide Web; Anne B. Ryan, Punishing Thought: A NarrativeDeconstructing the Interpretive Dance of Hate Crime Legislation

Vol. 35 No. 2 Dean Robert Gilbert Johnston & Sarah Lufrano, The Adversary System as a Means of Seeking Truth and Justice; Kimberly Carlson, When Cows Have Wings: An Analysis of the OECD's Tax Haven Work as It Relates to Globalization, Sovereignty and Privacy; Brandon K. Lemley, Effectuating Censorship: Civic Republicanism and the Secondary Effects Doctrine; THIRD ANNUAL ARTHUR J. GOLDBERG CONFERENCE: Don Turner, Willard A. Workman, & Ira Arlook, International Trade and Labor: Leveling Up or Down; FOURTH ANNUAL ARTHUR J. GOLDBERG CONFERENCE: Gerald E. Berendt, David Moberg, & Stephen Franklin, The Labor Strike: Is It Still a Useful Economic Weapon for Unions?; Benjamin B. Cotton, Prospecting or Cybersquatting: Registering Your Name Before Someone Else Does; Derek Witte, Avoiding the Un-Real Estate Deal: Has the Uniform Electronic TransactionsAct Gone Too Far?

Vol. 35 No. 3 Anthony M. Cabot & Robert C. Hannum, Gaming Regulation and Mathematics: A Marriage of Necessity; Marc D. Ginsberg, Beyond the Viewbox: The Radiologist's Duty to Communicate Findings; ASSOCIATION OF AMERICAN LAW SCHOOLS ANNUAL MEETING: INTERNATIONAL AIDS: A Case Study in the Challenges of Globalization, John G. Culhane, Peter Kwan, Andrew L. Strauss, Allyn L. Taylor, Pierre De Vos, Mark E. Wojcik; Nathan W. Eckley, Reaping the Benefits of Agricultural Biotechnology Through Uniform Regulation; Brian M. Holt, Genetically Defective: Courts' Interpretation of the Americans with Disabilities Act Fails to Protect Against Genetic Discriminationin the Workplace

Vol. 35 No. 4 THE FUTURE OF EMPLOYEE BENEFITS LAW: A JOHN MARSHALL LAW REVIEW SYMPOSIUM: Katherine J. Kennedy, A Primer on the Taxation of Executive Deferred Compensation Plans; Susan J. Stabile, Another Look at 401(K) Plan Investments in Employer Securities; David A. Pratt, Pension Simplification; Pamela Perun, Phased Retirement Programs for the Twenty-First Century Workplace; Lorraine Schmall, Women and Pension Reform: Economic Insecurity and Old Age; Christopher E. Condeluci, Winning the Battle, But Losing the War: Purported Age Discrimination May Discourage Employers from Providing Retiree Medical Benefits; Gregory Pitts, E.R.I.S.A Subrogation as Interpreted Within the Seventh Circuit-A Roadmap for Managing First Dollar Recovery; Todd M. Murphy, Crossroads: Modern Contract Dissatisfaction as Applied to Songwriter and RecordingAgreements

Vol. 36 No. 1 Molly Mosley-Goren, Jurisdictional Gerrymandering?Responding to Holmes Group v. Vornado Air CirculationSystems; Darin Bartholomew, Is Silence Golden When it Comes to Auditing: A First Amendment Focus; Bernard E. Nodzon, Jr., Free Speech in a Digital Economy: An Analysis of How Intellectual Property Rights Have Been Elevated at the Expense of Free Speech; Brian J. Steffen, Ph.D., Freedom of the Private-University Student Press: A ConstitutionalProposal; David L. Hudson, Jr. and John E. Ferguson, Jr., The Court's Inconsistent Treatment of Bethel v. Fraser and the Curtailment of Student Rights; David L. Hudson, Jr., Reflecting on the Virtual Child Porn Decision; Kristen Hudson Clayton, The Draft Hague Convention on Jurisdictionand Enforcement of Judgments and the Internet-A New JurisdictionalFramework; Lisa Petrilli, Lost Chance in Illinois? That May Still Be The Case; Sandra Ferson Young, An InternationalAntitrust Dilemma:An Analysis of the Interaction of Antitrust Laws in the United States and the European Union

Vol. 36 No. 2 Kristal S. Steppich, Behind the Words: Interpreting the Hobbs Act Requirement of "Obtainingof Property From Another"; Casey L. Westover, The Twenty-Eighth Amendment: Why the Constitution Should Be Amended to Grant Congress the Power to Legislate in Furtherance of the General Welfare; Eve T. Krazewski, Overhauling the Good Faith Reasonable Doubt Test: Unions Should Be Obligated to Provide Annual Mandatory Polls to Determine Continuing Union Majority Status; Clovia Hamilton, University Technology Transfer and Economic Development: Proposed Cooperative Economic Development Agreements Under the Bayh- Dole Act; Pamela Edwards, Into the Abyss: How Party Autonomy Supports Overreaching Through the Exercise of Unequal Bargaining Power; Frederic R. Kellogg, Holmes, Common Law Theory, and Judicial Restraint; Paul Kleppetsch, In the Wake of Kyllo v. United States: The Future of Thermal Imaging Cameras; Peter Puchalski, Illinois Construction Negligence, Post-Structural Work Act: The Need for a Clear Legislative Mandate

Vol. 36 No. 3 Daniel Goldberg, Cornering the Market in a Post 9/11 World: The Future of Horizontal Restraints; Celeste M. Hammond, The (Pre)(As)sumed "Consent" of Commercial Binding Arbitration Contracts: An Empirical Study of Attitudes and Expectations of Transactional Lawyers; Georgette Chapman Poindexter, Impossible, Impracticable, or Just Expensive? Allocation of Expense of Ancillary Risk in the CMBS Market; Thomas C. Homburger & Timothy J. Grant, A Changing World: A Commercial Landlord's Duty to Prevent Terrorist Attacks in Post- September 11th America, Harold L. Levine, A Day in the Life of a Residential Mortgage Defendant; Mark E. Wojcik & Lawrence Friedman, Foreword: Setting Standards: Should the Federal Circuit Give Greater Deference to Decisions of the U.S. Court of International Trade in International Trade Cases?; The Honorable Gregory W. Carman, A Suggested Revision of the Standard of Review That the Federal Circuit Applies to Appeals of Antidumping and CountervailingDuty Cases from the U.S. Court of International Trade; John F. Costello, Jr., Mandamus as a Weapon of "Class Warfare" in Sixth Amendment Jurisprudence:A Case Comment on United States v. Santos; Bob Madden, The Valuation of an Experience: A Study in Land Use Regulation

Vol. 36 No. 4 SEVENTH CIRCUIT REVIEW: Donald L. Beschle, The First Amendment in the Seventh Circuit: 2002; lain D. Johnston, Survey of Seventh Circuit Decisions: Class Actions; Molly Mosley-Goren, Intellectual Property Law Decisions of the Seventh Circuit; David Anthony Rutter, Title VII Retaliation, A Unique Breed; Kendra Johnson Panek, Forum Selection Clauses in Diversity Actions; Paul Cherner & Abel Leon, Americans With DisabilitiesAct (ADA); Matthew Hector, Privacy to be Patched in Later - An Examination of the Decline of Privacy Rights; Anthony J. Longo, Agreeing to Disagree:A Balanced Solution to Whether PartiesMay Expand the Scope of Judicial Review Beyond the FAA; Donna L. Moore, Implementing A National Putative Father Registry by Utilizing Existing Federal/State CollaborativeDatabases

Vol. 37 No. 1 Scott Paccagnini, How Low Can You Go (Down the Ladder): The Vertical Reach of RICO; Lisa Lawler Gradior, Back to Basics: A Call to Re- evaluate the Unemployment Insurance Disqualification for Misconduct; Timothy E. Wind, The Quandary of Megan's Law: When the Child Sex Offender is A Child; Gregory J. Wrtman, Freedom of Discrimination?:The Conflict Between Public Accommodations' Freedom of Association and State Anti-Discrimination Laws; Kyle Murray, Assumption-of-the-Risk Retirement?: A Survey of Recent "Serious Consideration"Case Law; Lee Ann Rabe, Sticks and Stones: The First Amendment and Campus Speech Codes; Violeta I. Balan, Recognition and Enforcement of Foreign Judgments in the United States: The Need for Federal Legislation; Andrew J. Boyd, Righting the Canoe: Title 1X and the Decline of Men's IntercollegiateAthletics; Koby Bailey, Energy "Goods'" Should Article 2 of the Uniform Commercial Code Apply to Energy Sales in a Deregulated Environment?

Vol. 37 No. 2 SYMPOSIUM: MARBURY V. MADISON AND JUDICIAL REVIEW: LEGITIMACY, TYRANNY AND DEMOCRACY: Samuel R. Olken, Foreword; William E. Nelson, The Province of the Judiciary; Larry D. Kramer, The Pace and Cause of Change; Samuel R. Olken, The Ironies of Marbury v. Madison and John Marshall's Judicial Statesmanship; Louis Michael Seidman, The Secret Life of the Political Question Doctrine; Thomas W. Merrill, Marbury v. Madison as the First Great Administrative Law Decision; Mark Tushnet, Constitutional Hardball; Walter Kendall, Reflections on Judicial Review and the Plight of the Poor in a World Where Nothing Works; Maria Zas, ConsularAbsolutism: The Need for Judicial Review in the Adjudication of Immigrant Visas for Permanent Residence; Jana L. Tibben, Family Leave Policies Trump States' Rights: Nevada Department of Human Resources v. Hibbs and Its Impact on Sovereign Immunity Jurisprudence

Vol. 37 No. 3 EMPLOYEE BENEFITS SYMPosIUM: Kathryn J. Kennedy, Dedication; David Wray, Foreword; Donald T. Bogan, ERISA: Rethinking Firestone in Light of Great-West - Implications for Standard of Review and the Right to a Jury Trial in Welfare Benefit Claims; Ellen A. Bruce and John Turner, Lost Pension Money: Who is Responsible? Who Benefits?; Mark D. DeBofsky, The Paradox of the Misuse of Administrative Law in ERISA Benefit Claims; Barry Kozak, The Cash Balance Plan: An Integral Component of the Defined Benefit Plan Renaissance; Steven R. Lifson, PracticalPlanning Ideas for Distributionsfrom IRAs and Qualified Plans; Dana M. Muir, Counting the Cash: Disclosure and Cash Balance Plans; Nikolay A. Ouzounov, Keeping Employees' Trust: The Rocky Road Ahead for Pension Plan Trustees; Mary Ann Leuthner, Need for a Ceasefire in the War on the Workers: Restoring the Balance and Hope of the National Labor Relations Act; Margaret C. McGrath, Insulin-Dependen Diabetes and Access to Treatment in the Workplace: The Failure of the Americans with Disabilities Act to Provide Protection; Allison Cychosz, The Effectiveness of InternationalEnforcement of Intellectual PropertyRights

Vol. 37 No. 4 Julie Spanbauer, Dedication; Jeremy Colby, SWANCC: Full of Sound and Fury, Signifying Nothing.. .Much?; Kevin M. McDonald, Separations, Blowouts, and Fallout: A Treadise on the Regulatory Aftermath of the Ford-Firestone Tire Recall; Nikolay A. Ouzounov, Facing the Challenge: Corruption, State Capture and the Role of Multinational Business; Julie Campagna, United Nations Norms on the Responsibilities of Transnational Corporationsand Other Business Enterprises With Regard to Human Rights: The International Community Asserts Binding Law on the Global Rule Makers; Andrew J. Boyd, Medical Marijuana and Personal Autonomy; Timothy 0' Brien, A Dollar Short: The Impact of the CAN-SPAM Act of 2003 on Illinois Businesses; Anita Schausten, Retaliation Against Third Parties: A Potential Loophole in Title VII's DiscriminationProtection; Andrzej Niekrasz, The Past is Another Country: Against the Retroactive Applicability of the Foreign Sovereign Immunities Act to Pre-1952 Conduct; Andrea Evensen, "Don't Let the Sun Go Down on Me:"An In-Depth Look at OpportunisticBusiness Method Patent Licensing and a Proposed Solution to Allow Small-Defendant Business Method Users to Sing a Happier Tune

Vol. 38 No. 1 SYMPOSIuM: REAL ESTATE IN BANKRUPTCY: A LOOK BACK FOR A BETTER LOOK FORWARDS: Michael Bartolic, Dedication; Erin N. Graham, Dedication; Jennifer Hagberg, Dedication; Celeste M. Hammond, Foreword; Douglas G. Baird, Remembering Pine Gate; A. Mechele Dickerson, Bankruptcy and Mortgage Lending: The Homeowner Dilemma; Paul B. Lewis, 203 N. LaSalle Five Years Later: Answers to the Open Questions; Robert M. Zinman, Precision in Statutory Drafting: The Qualitech Quagmire and the Sad History of Section 365(h) of the Bankruptcy Code; Gerald F. Munitz, Treatment of Real Property Liens in Bankruptcy Cases; Paul L. Hammann & John C. Murray, Creditors' Rights Risk: A Title Insurer's Perspective; Brian Bassett, How to Keep the Lights On: An Exploration of the Abrogation of Wholesale Energy Contracts; Timothy Scahill, The Domestic Security Enhancement Act of 2003: A Glimpse Into a Post-PatriotAct Approach to Combating Domestic Terrorism; Jeffrey Stephen Sobek, Balancing Individual Privacy Rights and the Rights of Trademark Owners in Access to the WHOIS

Vol. 38 No. 2 Scott Fruehwald, The Boundary of Personal Jurisdiction:The "Effects Test" and the Protection of Crazy Horse's Name; Floyd Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of ConstitutionalProtection; Troy L. Booher, FindingReligion for The First Amendment; Sue Ann Mota, Global Antitrust Enforcement: The Sherman Act Does Not Apply Without Any Direct Domestic Effect, but Discovery Assistance May Be Available to a Foreign Tribunal, According to The U.S. Supreme Court; Virginia F. Milstead, State Sovereign Immunity and the Plaintiff State: Does the Eleventh Amendment Bar Removal of Actions Filed in State Court?; Bruce Epperson, Permitted but Not Intended: Boub v. Township of Wayne, Municipal Tort Immunity in Illinois, and the Right to Local Travel; James C. Munson & Christi J. Guerrini, Avoidable Due Process Confusion: Special Use Hearings in Illinois After Klaeren; Cecil C. Kuhne, III, Rethinking Campaign-Finance Reform: The Pressing Need for Deregulation and Disclosure; Jeffrey D. Waltuck, Remaining Silent: A Right With Consequences; Nathan Wilda, David Pays for Goliath's Mistakes: The Costly Effect Sarbanes-Oxley Has on Small Companies

Vol. 38 No. 3 Donald T. Bogan, ERISA: State Regulation of Insured Plans After Davila; Richard Ehrhart, Section 409A-Treasury "Newspeak" Lost in the "BriarPatch"- Albert Feuer, When Are Releases of Claims for ERISA Plan Benefits Effective?; Nell Hennessy, Follow the Money: ERISA Plan Investments in Mutual Funds and Insurance;Craig C. Martin & Elizabeth L. Fine, ERISA Stock Drop Cases: An Evolving Standard; James L. Daniels, Violating the Inviolable: Firearm Industry Retroactive Exemptions and the Need for a New Test for Overreaching Federal Prohibitions; Paula Jacobi, Pharmaceutical Tort Liability: A Justifiable Nemesis to Drug Innovation and Access; Megan McCoy, "Who's The Boss?'" An Analytical and PracticalApproach to Determine the "Employer" in a Defined Contribution Qualified Retirement Plan; Zubaida Qazi, In the Wake of Gratz v. Bollinger: Standing on Thin Ice; Patrick Walsh, Stemming the Tide of Stem Cell Research: The Bush Compromise

Vol. 38 No. 4 Louis J. Virelli III, Don't Ask, Don't Tell, Don't Work: The DiscriminatoryEffect of Veterans' Preferences on Homosexuals; Matthew R. Schreck, Preventing "You've Got Mail"rm From Meaning "You've Been Served"- How Service of Process by E-Mail Does Not Meet Constitutional Procedural Due Process Requirements; Nsongurua J. Udombana, A Question of Justice: The WTO, Africa, and Countermeasuresfor Breaches of International Trade Obligations; Jason A. Abel, Balancing a Burning Cross: The Court and Virginia v. Black; Professor Ralph Ruebner, The Evolving Nature of the Crime of Genocide; Mark W. Bina, Private Military Contractor Liability and Accountability After Abu Ghraib; Joan Colson, Rule of Ethics or Substantive Law: Who Controls an Individual's Right to Choose a Lawyer in Today's Corporate Enviornment; Robert W. Gray, The Applicability of Constructive Eviction, Implied Warranty of Habitability, Common-Law Fraud, and the Consumer Fraud Act to Omissions of Material Facts in a Commercial Lease; Daniel B. Roth, Campaign Finance Reform, Electioneering Communications, and the First Amendment: Resuscitatingthe Third Exception

Vol. 39 No. 1 Sandra Liss Friedman & Helena D. Sullivan, Optrex and the Attorney-Client Privilege: Implications and Potential Significance; Munford Page Hall, II, Remands in Trade Adjustment Assistance Cases; Patricia M. McCarthy, An Importer's Election: Whether to Invoke Attorney Advice in Defense or to Preserve Privilege; John B. Pellegrini, What Does Optrex Mean for the Customs Bar?; Stuart M. Rosen, Jennifer J. Rhodes, & W. Andrew Ryu, PreliminaryInjunctions: A Respondent's Perspective; Jeffrey M. Telep, Injunctions Against Liquidation in Trade Remedy Cases: A Petitioners' View; Elizabeth C. Seastrum & Matthew D. Walden; Adjudicating International Trade Cases at the U.S. Commerce Department: Endless Remand or Balanced Resolve?; Michael P. DiNatale, Patients Beware: Preemption of Common Law Claims Under the Medical Device Amendments; Lisa M. Fealk-Stickler, Regulating the Regulators: The Impact of FDA Regulation on Corporations'First Amendment Rights; Meghan Riley, American Courts are Drowning in the "Gene Pool"-Excavating the Slippery Slope Mechanisms Behind Judicial Endorsement of DNA Databases;Nimalka Wickramasekera, Public Use or Experimental Use: Are Clinical Trials Susceptible to Another Attack Similar to That in Smithkline Beecham Corp. v. Apotex Corp.?

Vol. 39 No. 2 Debra Pogrund Stark, Foreword; Debra Pogrund Stark, Navigating ResidentialAttorney Approvals: Finding a Better Judicial North Star; Jon Romberg, The Hybrid Class Action as Judicial Spork: Managing Individual Rights in a Stew of Common Wrong; Darlene C. Goring, The History of Slave Marriage in the United States; Robin A. Boyle, Law Students with Attention Deficit Disorder: How to Reach Them, How to Teach Them; Dean A. Strang, Felons, Guns, and the Limits of Federal Power; Gregory Crespi, Valuation in Cost-Benefit Analysis: Choosing Between Offer Prices and Asking Prices as the Appropriate Measure of Willingness to Pay; Douglas Kash and Matthew Indrisano, In the Service of Secrets: The U.S. Supreme Court Revisits Totten; Kaycee Hopwood, "For It's One, Two, Three Strikes, You're Out . . ." Jessica Butterfield, Blue Mourning: Postpartum Psychosis and the Criminal Insanity Defense, Waking to the Reality of Women Who Kill Their Children; Ruth Yacona, Manson v. Brathwaite: The Supreme Court's Misunderstanding of Eyewitness Identification

Vol. 39 No. 3 Honorable William J. Bauer, Dedication; Priscilla E. Ryan, Foreword; Justin Cummins and Meg Luger Nikolai, ERISA Reform in a Post-Enron World; Craig C. Martin, Matthew J. Renaud & Omar R. Akbar, What's up on Stock-Drops? Moench Revisited; Mark Casciari and Ian Morrison, Should the Securities Exchange Act be the Sole Federal Remedy for an ERISA Fiduciary Misrepresentation of the Value of Public Employer Stock?; David Pratt, Standards of Practicefor Pension Practitioners;Paul M. Secunda, Inherent Attorney Conflicts of Interest Under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries;Alison McMorran Sulentic, Can Systems Analysis Help Us to Understand C.O.B.R.A.?: A Challenge to Employment-Based Health Insurance; Larry Grudzien, The Great Vanishing Benefit, Employer Provided Retiree Medical Benefits: The Problem And Possible Solutions; Colleen E. Medill, Resolving The Judicial Paradox Of "Equitable"Relief Under ERISA Section 502(A)(3); John F. Hiltz, Uniform Laws or State Immunity? The Constitutionality of Section 106(a) After Seminole; Ezra Spilke, Adjudicated on the Merits?: Why the AEDPA Requires State Courts to Exhibit Their Reasoning; Jeffrey Hoskins, Negligent Infliction of Emotional Distress: Recovery is Foreseeable

Vol. 39 No. 4 Mark L. Jones, Fundamental Dimensions of Law and Legal Education: An Historical Framework - A History of U.S. Legal Education Phase I: From the Founding of the Republic Until the 1860s; Richard H.W. Maloy, The 'Priority Statute" - The United States' "Ace-in-the-Hole" Jeffrey A. Parness, No Genetic Ties, No More Fathers: Voluntary Acknowledgment Rescissions and Other Paternity Disestablishments Under Illinois Law; Paul A. Clark, Limiting the Presidency to Natural Born Citizens Violates Due Process; Frank Adams, Why Legislative Findings Can Pad-Lock Redistricting Plans in Racial-Gerrymandering Cases; Walter M. Frank, Making our Congressional Elections More Competitive; A Proposal for a Limited Number of Statewide At-Large Elections in Our More Populous States; Vasiliki Agorianitis, Being Daphne's Mom: An Argument for Valuing Companion Animals as Companions; Timothy Tommaso, Disparate Impact and the ADEA- So, Who is Going to be in the Comparison Group?; Benjamin Burnham, Hitching a Ride: Every Time You Take a Drive, the Government is Riding With You; Renee Labuz, Shareholders'Rightsto a Cause of Action Under the Investment Company Act of 1940 Following Exxon Mobil v. Allapattah

Vol. 40 No. 1 L. Darnell Weeden, Hurricane Katrina and the Toxic Torts Implications of Environmental Injustice in New Orleans; Amy D. Ronner, Dostoyevsky and the Therapeutic Jurisprudence Confession; Steven M. Puiszis, Developing Trends with the Class Action Fairness Act of 2005; Surabhi Ranganathan, Reconceptualizing the Boundaries of "Humanitarian"Assistance: "What's in a Name" or "The Importance of Being 'Earnest"?;Reuven (Ruvi) Ziegler, The French "HeadscarvesBan": Intolerance or Necessity?; Justin R. Watkins, Always Low Prices, Always at a Cost: A Call to Arms Against the Wal-Martization of America; Jessica Lynn Mok O'Neill, If You Love Me Dear, Please Sign Here: Will the "Love Contract" Play a Role in Protecting Employers from Sexual Harassment Liability?; John Heintz, Political Currency and Hard Currency: The No Child Left Behind Act Turns Three; Andrea Koklys, Second Chance for Justice: Reevaluation of the United States Double Jeopardy Standard

Vol. 40 No. 2 REAL ESTATE LAw SYMPosiuM: Celeste M. Hammond, Foreword; Richard H. Chused, The Roots of Jack Spring v. Little; Mary Spector, Tenant Stories: Obstacles and Challenges Facing Tenants Today; Mary Marsh Zulack, If You Prompt Them, They Will Rule: The Warranty of HabitabilityMeets New Court Information Systems; Robert G. Schwemm, Why Do Landlords Still Discriminate (and What Can Be Done About It)?; Lloyd T. Wilson, Jr., The Beloved Community: The Influence and Legacy of Personalism in the Quest for Housing and Tenants' Rights; David L. Callies and Christopher T. Goodin, The Status of Nollan v. California Coastal Commission and Dolan v. City of Tigard after Lingle v. Chevron U.S.A., Inc.; Dale A. Whitman, Deconstructing Lingle: Implications for Takings Doctrine; Richard A. Epstein, From Penn Central to Lingle: The Long Backwards Road; Debra Pogrund Stark, How Do You Solve a Problem Like in Kelo?; William Glunz, Granholm v. Heald: The Twenty- First Amendment Takes Another Hit - Where Do States Go from Here?; Amanda Draper, Identity Theft: Plugging the Massive Data Leaks with a Stricter Nationwide Breach-Notification Law; Robert Connolly, Legitimizing Private Placement Broker-Dealers Who Deal with Private Investment Funds: A Proposalfor a New Regulatory Regime and a Limited Exception to Registration

Vol. 40 No. 3 EMPLOYEE BENEFITS LAW SYMPosIUM: Kathryn L. Moore, Foreword; Alison McMorran Sulentic, Secrets, Lies & ERISA: The Social Ethics of Misrepresentations and Omissions in Summary Plan Descriptions; David Pratt, The Past, Present and Future of Health Care Reform: Can It Happen?; Mark D. DeBofsky, What Process Is Due in the Adjudication of ERISA Claims?; Craig C. Martin & Joshua Rafsky, The Pension Protection Act of 2006: An Overview of Sweeping Changes in the Law Governing Retirement Plans; Barry Kozak & Joshua Waldbeser, Much Ado About the Meaning of "Benefit Accrual": The Issue of Age Discrimination in Hybrid Cash Balance Plan Qualification Is Dying but Not Yet Dead; Kathryn L. Moore, Book Review: The Battle for Social Security: From FDR's Vision to Bush's Gamble, Nancy J. Altman; Albert Feuer, Who Is Entitled to Survivor Benefits from ERISA Plans?; Adrienne Detanico, Banning Smoking in Chicago's Social Scene: Protecting Labor and Broadening Public Health Policy; Bonny Bumiller, Legalized Gaming and Political Contributions: When the Diceman Cometh, Will Corruption Goeth?

Vol. 40 No. 4 GAMING LAw SYMPosIUM: Heidi McNeil Staudenmaier & Ruth K. Khalsa, Theseus, the Labyrinth, and the Ball of String: Navigating the Regulatory Maze to Ensure Enforceability of Tribal Gaming Contracts; I. Nelson Rose, Gambling and the Law@: The International Law of Remote Wagering; Anthony N. Cabot & Louis V. Csoka, Fantasy Sports: One Form of Mainstream Wagering in the United States; William N. Thompson, Robert W. Stocker, II & Peter J. Kulick, Remedying the Lose-Lose Game of Compulsive Gambling: Voluntary Exclusions, Mandatory Exclusions, or an Alternative Method?; D. Michael McBride, III & H. Leonard Court, Labor Regulation, Union Avoidance and Organized Labor Relations Strategies on Tribal Lands: New Indian Gaming Strategies in the Wake of San Manuel Band of Indians v. National Labor Relations Board; Cory Aronovitz & Jon Topolewski, Casenote: The Emerald Casino Fiasco; Anne Skrodzki, Signing Statements and the New Supreme Court: The Future of Presidential Expression; Christine Niemczyk, Boxing Out Big Box Retailers: The Legal and Social Impact of Big Box Living Wage Legislation; Michael Hopkins, Hemlock in the Marketplace: How Freedom of the Press for College Newspapers Poisons the First Amendment; Ronald Neroda, A Winner for the Windy City: A Comment in Support of Establishinga Land-Based Casino in the City of Chicago Vol. 41 No. 1 Michel Rosenfeld, Dedication; Philip K. Hamilton, Should Statements Made by Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique; Carl J. Circo, Placing the Commercial and Economic Loss Problem in the Construction Industry Context; Keith H. Beyler, Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment; Cristina Rodriguez, The FDA Preamble: A Backdoor to Federalization of Prescription Warning Labels?; William R. Everding, "Heads-I-Win, Tails- You-Lose"- The Predicament Legitimate Small Entities Face post eBay and the Essential Role of Willful Infringement in the Four-FactorPermanent Injunction Analysis; Natalie Hinton, Curing the BOP Plague with Booker: Addressing Inadequate Medical Treatment in the Bureau of Prisons; Joe O'Brien, Is Chicago's Plan for Transformation Promoting Integration or Reinforcing Segregation?

Vol. 41 No. 2 Michael A. Pollard & Ann Lousin, Dedication;Daniel B. Bogart, Good Faith and FairDealing in Commercial Leasing: The Right Doctrine in the Wrong Transaction;Megan E. Mowry, Discriminatory Pay and Title VII: Filing a Timely Claim; James R. Alexander, Roth at Fifty: Reconsidering the Common Law Antecedents of American Obesity Doctrine; Allan L. Karnes, Terminating Maintenance Payments when an Ex-Spouse Cohabitates in Illinois: When is Enough Enough?; Mark D. Ginsberg & Tricia E. McVicker, Not for the Faint of Heart: Does a Hospital Owe a Duty to Warn a Squeamish Visitor?; Eugene Goryunov, All Rights Reserved: Does Google's "Image Search" Infringe Vested Exclusive Rights Granted Under the Copyright Law?; Laura C. Howard, Live Alienation: One Super-PromoterEliminates Competition, Concert Fans Pay the Price, and the Sherman Act Waits in the Wings; Scott Velasquez, There Ain't No Such Thing as a Free Lunch: A Look at State Gift Disclosure Laws and the Effect on Pharmaceutical Company Marketing; Dustin Fisher, Selling the Payments: PredatoryLending Goes Primetime

Vol. 41 No. 3 CLEAR SYMPOSIUM: Amy Keller, Dedication; Kathryn Kennedy, Dedication; Nancee Alexa Barth, Foreword; John Decker, The Mission of the CriminalLaw Edit, Alignment and Reform Commission (CLEAR): An Introductory Commentary; Judge Michael P. Toomin, Second Degree Murder and Attempted Murder: CLEAR's Efforts to Maneuver the Slippery Slope; Timothy P. O'Neill, The CLEAR Initiative and Mental States: 112 Problems Solved; Theodore A. Gottfried & Peter G. Baroni, Presumptions, Inferences, and Strict Liability in Illinois Criminal Law: Preempting the Presumption of Innocence; Terri L. Mascherin, Andrew Vail, & Jennifer L. Dlugosz, Reforming the Illinois Criminal Code: Where the CLEAR Commission Stopped Short of Its Goals; John J. Cullerton, Kirk W. Dillard, James B. Durkin, Robert S. Molaro & Peter G. Baroni, The Illinois Criminal Code of 2009: Providing Clarity in the Law; Nancee Alexa Barth, "Id Grab at Anything. And Id Forget." Domestic Violence Victim Testimony After Davis v. Washington; Michael Duffy, Nontestimonial Declarations Against Penal Interest: Eschewing the CorroborationRequirement for Inculpatory Statements After Crawford Vol. 41 No. 4 EMPLOYEE BENEFITS LAw SYMPosiuM: William S. Weltman, Dedication of Issue to Dean Emeritus Fred F. Herzog; Ann M. Lousin, Remarks at Memorial Service for Dean Emeritus Fred F. Herzog; Gerald E. Berendt, Herzog Memorial Service: Fred's Life; Jonathan Berry Forman, Foreword; Joshua Waldbeser, Case Note: Golden Gate Restaurant Association v. City and County of San Francisco: Setting the Stage for Supreme Court Review of the Most Important Preemption Matter in the History of ERISA; Debra A. Davis, How Much is Enough? Giving Fiduciaries and Participants Adequate Information About Plan Expenses; Craig C. Martin, Matthew J. Renaud, & Douglas A. Sondgeroth, Yeaka Boom: Coming Developments in ERISA Litigation Due to Social, Demographic, and Financial Pressures From the Baby Boom Generation; Kathryn L. Moore, The Future of Social Security: Principlesto Guide Reform; David Pratt, Retirement in a Defined Contribution Era: Making the Money Last; John Sanchez, The Vesting, Modification, and Financingof Public Retiree Health Benefits in Light of New Accounting Rules; Yves Stevens, European and American Issues in Employee Benefits Law Compared; Aimee Deverall, Make the Dream a Reality: Why Passingthe Dream Act is the Logical First Step in Achieving Comprehensive Immigration Reform; Christopher L. Dore, What to Do With Omar Khadr? Putting a Child Soldier on Trial: Questions of InternationalLaw, Juvenile Justice, and Moral Culpability

Vol. 42 No. 1 Michael J. Kasper, Magic Words and Millionaires: The Supreme Court's Assault on Campaign Funding; Kali Murray, First Things, First: A Principled Approach to Patent Administrative Law; Barnett P. Ruttenberg & Thomas Gianturco, An Analysis of the Contraction of Limited Tort Immunity for Recreational Liability in Illinois; Robert Sprague, Orwell was an Optimist: The Evolution of Privacy in the United States and Its De-Evolution for American Employees; Pamela Begaj, An Analysis of Historical and Legal Sanctuary and a Cohesive Approach to the Current Movement; Michael DeMarino, Rule 2019: The Debtor's New Weapon; Adam Doeringer, Rehabilitating Juvenile Sex Offenders with a Life Sentence; Katherine Zogas, The Clean Water Act's Antidegradation Policy: Has It Been 'Dumped"?

Vol. 42 No. 2 Editorial Board 2008-2009, Dedication of issue to Chief Justice Thomas R. Fitzgerald; Michael L. Closen & Charles N. Faerber, The Case That There is a Common Law Duty of Notaries Public to Create and Preserve Detailed JournalRecords of Their Official Acts; Mark J. Sundahl, The Living Constitution of Ancient Athens: A Comparative Perspective on the OriginalismDebate; Catherine R. Caifano, When the Music Stops, Why Not Require Certain Title VII Plaintiffs to Find a Chair on Which to Rest Their Complaint?; Michael R. Pieczonka, The Largest Loophole in Federal Tax Law: Preferential Capital Gain Treatment for Private Equity and Hedge Fund Managers' CarriedInterests; Ghazal Sharifi, Is the Door Open or Closed? Evaluating the Future of the Federal Medical Peer-Review Privilege Vol. 42 No. 3 ORGANIZING AND LAW IN THE OBAMA ERA: COMMEMORATING THE 100TH ANNIVERSARY OF SAUL ALINSKY'S BIRTH: Ghazal Sharifi, Dedication to Belle R. and Joseph H. Braun; Walter J. Kendall III, Foreward-Alinsky Conference; Corey S. Shdaimah, Lawyers and the Power of Community: The Story of South Ardmore; Scott L. Cummings, Commentary-A PragmaticApproach to Law and Organizing:A Comment on "The Story of South Ardmore" Gerald N. Rosenberg, Saul Alinsky and the Litigation Campaign to Win the Right to Same-Sex Marriage; Laura Beth Nielsen, Social Movements, Social Process: A Response to Gerald Rosenberg; Peter Dreier, Organizing in the Obama Era: A Progressive Moment or a New Progressive Era?; Barbara L. Bezdek, Alinsky's Prescription: Democracy Alongside Law; Scott N. Gilbert, You Can Move in But You Can't Stay: To Protect Occupancy Rights After Halprin, the FairHousing Act Needs to Be Amended to Prohibit Post-Acquisition Discrimination; Lisa K. Johnson, The IRS's Flawed Solution to the Controversy over Deductable Claims Against the Estate and the Necessity for a Date-of-Death Standard; Kimberly Wise, Peering into the Judicial Magic Eight Ball: Arbitrary Decisions in the Area of Juror Removal

Vol. 42 No. 4 EMPLOYEE BENEFITS LAW SYMPosIUM: Jonathan Barry Forman, Funding Public Pension Plans; Susan E. Cancelosi, VEBAs to the Rescue: Evaluating One Alternative for Public Sector Retiree Health Benefits; Thomas J. McCarthy & John M. Power, Two Decades After Beech: Confusion Over the Admissibility of Expert Opinions in Public Records; Kate E. Bloch, Cognition and Star Trek: Learning and Legal Education; Whitney Innes, The Unaccountability of the Accounting Regulators: Analyzing the Constitutionality of the Public Company Accounting Oversight Board; Dean Kalant, Who's in Charge Here? Requiring More Transparency in Corporate America: Advancements in Beneficial Ownership for Privately Held Companies; Oksana Koltko, Chasing Profits-DisregardingValues: Legal Persona of Elite Schools and Their Destructive Tax-Exempt Status; Lauren Sylvester, Redefining Disposable Income in Chapter 13 Plans: Moving Forward into a "New Era in the History of Bankruptcy Law"

Vol. 43 No. 1 Ambassador Hans Corell, Commentary: International Prosecution of Heads of State for Genocide, War Crimes, and Crimes Against Humanity; Clay Calvert, Kayla Gutierrez, Karla D. Kennedy, & Kara Carnley Murrhee, David Doe v. Goliath, Inc.: Judicial Ferment in 2009 for Buisness Plaintiffs Seeking the Identities of Anonymous Online Speakers; Frederick B. Jonassen, The Law and the Host of The Canterbury Tales; Steven R. Morrison, When Is Lying Illegal? When Should It Be? A Critical Analysis of the Federal False Statements Act; William Arthur Wines, Observations on Leadership: Moral and Otherwise; Randah Atassi, Silencing Tory Bowen: The Legal Implications of Word Bans in Rape Trials; Jisoo Kim, Confessions of a Whistleblower: The Need to Reform the Whistleblower Provision of the Sarbanes-Oxley Act; Jeremy Macklin, The Puzzling Case of Max Feinberg: An Analysis of Conditions in Partial Restraint of Marriage;John Ochoa, Ride at Your Own Risk: Bicycling and Government Tort Immunity in Illinois

Vol. 43 No. 2 REAL ESTATE LAW AND PRACTICE SYMPOsIUM: Celeste M. Hammond, Foreword; Lincoln L. Davies, East Going West?: The Promise of Assured Supply Laws in Modern Real Estate Development; Julian Conrad Juergensmeyer, Rainwater Recapture: Development Regulations Promoting Water Conservation; Richard J. Roddewig, Law as Hidden Architecture: Law, Politics, and Implementation of the Burnham Plan of Chicago Since 1909; Virginia M. Harding, Burnham, Water, and the Plan of Chicago: A Historical Explanation of Why Water Was Ignored and the Consequences of Ignoring Water; Adam Dauksas, Doninger's Wedge: Has Avery Doninger Bridged the Way for Internet Versions of Matthew Fraser?; Paul McNaughton, Photo Enforcement Programs: Are they Permissible Under the United States Constitution?; Chris Williams, The Communications Decency Act and New York Times v. Sullivan: Providing Public FigureDefamation a Home on the Internet

Vol. 43 No. 3 INTERNATIONAL JUSTICE IN THE 21ST CENTURY: THE LAW AND POLITICS OF THE INTERNATIONAL CRIMINAL COURT: Shahram Dana, Foreword: Law, Justice & Politics: A Reckoning of the International Criminal Court; Judge Philippe Kirsch, The International Criminal Court: From Rome to Kampala; William A. Schabas, Victor's Justice: Selecting "Situations"at the International Criminal Court; Brian D. Lepard, How Should the ICC Prosecutor Exercise His or Her Discretion? The Role of Fundamental Ethical Principles; Rod Rastan, Comment on Victor's Justice & the Viability of Ex Ante Standards; Kenneth S. Gallant, International Criminal Courts and the Making of Public InternationalLaw: New Roles for International Organizations and Individuals; Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court's Sphere of Influence; Jordan J. Paust, The International Criminal Court Does Not Have Complete Jurisdiction over Customary Crimes Against Humanity and War Crimes; Stuart Ford, The InternationalCriminal Court and Proximity to the Scene of the Crime: Does the Rome Statue Permit All of the ICC's Trials to Take Place at Local or Regional Chambers?; Zachary D. Kaufman, The Nuremberg Tribunal v. The Tokyo Tribunal: Designs, Staffs, and Operations; Chief Justice Robert French, Protecting Human Rights Without a Bill of Rights; Victoria D. Noel, The Exclusionary Rule Applied to Coerced Statements from Nondefendants; Steven M. Novak, Everyone Knows Medellin; Has Anyone Heard of O'Brien? Reconciling the United States and the International Community by Amending the VCCR; Mary Ann Scholl, GPS Monitoring May Cause Orwell to Turn in His Grave, But Will it Escape Constitutional Challenges? A Look at GPS Monitoring of Domestic Violence Offenders in Illinois

Vol. 43 No. 4 James J. Knicely & John W. Whitehead, In God We Trust: The JudicialEstablishment of American Civil Religion; Eric H. Franklin, How to Avoid the Constraints of Rule lob-5(b): A First Circuit Guide for Underwriters; Adam H. Morse, Second-class Citizenship: The Tension between the Supremacy of the People and Minority Rights; Margaret Ryznar, International Commercial Surrogacy and Its Parties; Jennifer Barton, Running from the United States Treasury: The Need to Reform the Taxation of Multinational Corporations;Katie Simpson-Jones, Unlawful Infringement or Just Creative Expression? Why DJ Girl Talk May Inspire Congress to "Recast, Transform, or Adapt" Copyright; David Weldon, Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure to Provide Immunity to Non-Medical Rescuers; Andrew Wrona, How Far Can the Automobile Exception Go? How Searches of Computers and Similar Devices Push It to the Limit

Vol. 44 No. 1 Susan C. Hascall, Shari'ah and Choice: What the United States Should Learn from Islamic Law about the Role of Victims' Families in Death Penalty Cases; Steven J. Andr6, The Transformationof Freedom of Speech: Unsnarlingthe Twisted Roots of Citizens United v. FEC; Gloria J. Liddell, Pearson Liddell, Jr. & Michael J. Highfield, Does an Economic Crisis Merit a Prima Facie Finding of "Exigent Circumstances" or Other Emergency Relief? The Impact of the Credit Counseling Provision of BAPCPA upon Distressed Homeowners in a Severe National Economic Downturn; Andrew D. Appleby, For the Love of the Game: The Justificationfor Tax Exemption in IntercollegiateAthletics; Katie Galanes, The Contradiction:Animal Abuse-Alive and Well; Patrick Goodwin, The Hobbs Act through the Rivera-Rivera Looking Glass: A Mere Intrusion upon Basic Fundamental Federalism Principles?; Nathan B. Grzegorek, The Price of Admission: How Inconsistent Enforcement of Antitrust Laws in America's Live Entertainment Sector Hurts the Average Consumer; Marissa Mazza, Are You Covered? The Need for Improvement in Insurance Coverage for Autism Spectrum Disorder

Vol. 44 No. 2 Victor E. Schwartz & Christopher E. Appel, Reshaping the Traditional Limits of Affirmative Duties under the Third Restatement of Torts; Mark C. Niles, Punctuated Equilibrium: A Model for Administrative Evolution; Harvey Gee, In Order to Be Silent, You Must First Speak: The Supreme Court Extends Davis's Clarity Requirement to the Right to Remain Silent in Berghuis v. Thompkins; Phillip Ruben Nava, Equal Access Struggle: Counter-Military Recruitment on High- School Campuses; Ryan Charlson, Flying Blind: The Lack of Uniformity in Federal Pleading after Twombly and Iqbal; Andrew Meyer, Barnes- Wallace v. City of San Diego: "Psychological Injury" and Its Effect on Standing; Brian Welch, Unconscionable Amateurism: How the NCAA Violates Antitrust by Forcing Athletes to Sign Away Their Image Rights; Tasha Weisman, Denying Relief to the Persecutor:An Argument in Favor of Adopting the Dissenting Opinion of Negusie v. Holder

Vol. 44 No. 3 THE IMPACT OF CITIZENS UNITED: CORPORATE SPEECH IN THE 2010 ELECTIONS: Steven D. Schwinn, Foreword: The Impact of Citizens United; Thomas E. Mann, Commentary: Campaign Finance in the Wake of Citizens United; Peter L. Francia, Back to the Future? The Effects of Citizens United v. FEC in the 2010 Election; Monica Youn, Small-Donor Public Financing in the Post-Citizens United Era; David H. Gans & Douglas T. Kendall, A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law; Ilya Shapiro & Caitlyn W. McCarthy, So What if Corporations Aren't People?; Atiba R. Ellis, Citizens United and Tiered Personhood; Rhandi Childress, Convicted by a Sleeping Jury: Harmless Error or a Challenge to the Integrity of our Criminal Justice System?; Carson Griffis, Ending a PeculiarEvil: The Constitution, Campaign Finance Reform, and the Need for a Change in Focus after Citizens United v. FEC; Brent Wilson, The "Current Monthly Income" Debate: Unemployment Compensation as a "Benefit Received under the Social Security Act"?

Vol. 44 No. 4 Martin A. Kotler, Tort Reform and Implied Conflict Preemption; Steven C. Bennett, Regulating Online BehavioralAdvertising; Jenny W.L. Osborne, One Day Criminal Careers: The Armed Career Criminal Act's Different Occasions Provision; Andrew Burtless, Limiting a Limitless Defense: A Case for Reviving the State Secrets Protection Act; Melissa Travis, The Three Cs Versus the Dinosaur: Updating the Technologically Archaic FDCPA to Provide Consumers, Collectors, and Courts Clarity; Mallory Yontz, Amending the Prison Litigation Reform Act: Imposing Financial Burdens on Prisoners over Tax Payers; David Johnsen, Free Speech on the Battlefield: Protecting the Use of Social Media by America's Soldiers; Peter Follenweider, Zero Tolerance:A Proper Definition

Vol. 45 No. 1 Dr. Dwight Bashir, Commentary: Religious Freedom under Assault in the Middle East: An Imperative for the U.S. and International Community to Hold Governments to Account; Stephanie G. Forbes, Following You Here, There, and Everywhere; An Investigation of GPS Technology, Privacy, and the Fourth Amendment; Sarah J. Webber, Don't Burst the Bubble: An Analysis of the First-Time Homebuyer Credit and Its Use as an Economic Policy Tool; Andrea MacIver, Suicide Causation Experts in Teen Wrongful Death Claims: Will They Assist the Trier of Fact?; Laura Pavlik Raatjes, School Discipline of Cyber-Bullies: A Proposed Threshold That Respects ConstitutionalRights; Jeremy A. Liabo, The New Threat to Financial Reform: The End-User Exception to Dodd- Frank Mandatory Swap Clearance; Morgan Marcus, A Delayed Penalty: The Implications of the Ilya Kovalchuk Arbitration Decision on the National Hockey League; Bradley Schaufenbuel, Revisiting Reader Privacy in the Age of the E-Book; Patrycja Rynduch, The United States of Immigration: A Nation in Crisis.How FearHas Shaped Immigration Law and Has Led Us to Question Basic ConstitutionalRights

Vol. 45 No. 2 REAL ESTATE LAW AND PRACTICE SYMPOSIUM: Celeste M. Hammond, Foreword; Fred Bosselman, The Twilight of National Land Use Policy; Patricia E. Salkin, The Quiet Revolution and Federalism:Into the Future; Daniel R. Mandelker, Implementing State Growth Management Programs: Alternatives and Recommendations; David L. Callies, It All Began in Hawai'i; Edward J. Sullivan, The Quiet Revolution Goes West: The Oregon PlanningProgram 1961-2011; Nancy Stroud, A History and New Turns in Florida's Growth Management Reform; John S. Banta, Esq., The Adirondack Park Land Use and Development Plan and Vermont's Act 250 After Forty Years; Megan Preusker, Criminal Sentencing Under the Advisory Guidelines and the Ex Post Facto Clause; Svetlana Gitman, (Dis)serviceof Process: The Need to Amend Rule 4 to Comply with Modern Usage of Technology; Stephanie Claiborne, Is It Justice or a Crime to Record the Police?: A Look at the Illinois Eavesdropping Statute and Its Application; Ryan Linsner, Ensuring Adequate Compensation to the Victims of the Deepwater Horizon Explosion: Who Says You Can't Teach an Old Dog New Tricks?