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Volume 68 Issue 2 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW VOLUME 68 ISSUE 2 NEW YORK UNIVERSITY SCHOOL OF LAW ARTHUR T. VANDERBILT HALL Washington Square New York City Imaged with the Permission of N.Y.U. Annual Survey of American Law New York University Annual Survey of American Law is in its seventy-first year of publication. L.C. Cat. Card No.: 46-30523 ISSN 0066-4413 All Rights Reserved New York University Annual Survey ofAmerican Law is published quarterly at 110 West 3rd Street, New York, New York 10012. Subscription price: $30.00 per year (plus $4.00 for foreign mailing). Single issues are available at $16.00 per issue (plus $1.00 for foreign mailing). For regular subscriptions or single issues, contact the Annual Survey editorial office. Back issues may be ordered directly from William S. Hein & Co., Inc., by mail (1285 Main St., Buffalo, NY 14209-1987), phone (800- 828-7571), fax (716-883-8100), or email ([email protected]). Back issues are also available in PDF format through HeinOnline (http://heinonline.org). All articles copyright @ 2012 by the New York University Annual Survey of American Law, except when otherwise expressly indicated. For permission to reprint an article or any portion thereof, please address your written request to the New York University Annual Survey of American Law. Copyright: Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that: (1) copies are distributed to students at or below cost; (2) the author and journal are identified on each copy; and (3) proper notice of copyright is affixed to each copy. Manuscripts: The Annual Survey invites the submission of unsolicited manuscripts. Text and citations should conform to the 19th edition of A Uniform System of Citation. Please enclose an envelope with return postage if you would like your manuscript returned after consideration. Editorial Office: 110 West 3rd Street, New York, N.Y. 10012 (212) 998-6540 (212) 995-4032 Fax http: //www.law.nyu.edu/pubs/annualsurvey Imaged with the Permission of N.Y.U. Annual Survey of American Law For what avail the plough or sail Or land or life, if freedom fail? EMERSON Imaged with the Permission of N.Y.U. Annual Survey of American Law iv Imaged with the Permission of N.Y.U. Annual Survey of American Law NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW 2012-2013 BOARD OF EDITORS Editor-in-Chief THEODORE KELLY ManagingEditors JEFFREY R. BENGEL ANDREW OSARCHUK Development Editors Executive Article Editors Senior Articles Editor JOSEPH M. ENO MAx KAPLAN E. DANIELLE BYAM CARLY WEINREB DAVID KATz CuFFORD MARK LANEY Note Editors ROSE S. LEE PAUL CHAFFIN KEVIN EUNHO PARK Symposium Editor STEPHEN ELKIND KELLY STEPHANIE ROCHESTER PARKER JASON SCHEFF EMILY WINOGRAD DENNY WON Article Editors JOSE ACOSTA ELIZABETH B. JORDAN SOPHIE SAVRYN TAYLOR ALEXANDER ERIc KAMERMAN P. DAVID SEIBERT NICHOLAS AXELROD LORETTA LAU ELANA BROWNSTEIN SIEGEL AYAL BAINVoL. WILUAM CLAYrON LAWRENCE SARAH E. SIEGEL MADELEINE EDDY BARENHOLTZ JUDD LINDENFELD YOAV SIHCHONI ASHLEY PARKS BELTON MEGAN C. MANFRED JENNA E. SMALL JEREMY H. ERSHOW AVA MCALPIN PAIGE CATHLEEN SPENCER KEVIN FRICK JAKE ORNSTEIN Ruou STERN ANDREW J. GERSHON MATTHEW RoTBART CHARLES TANENBAUM GANARAj S. HEGDE JESSE B. SACKS JORDAN WELLS LAUREN M. ISAACSON PAUL L. SANDLER KARI WOHLSCHLEGEL Staff Editors SIOBHAN C. ATKINS MICHAEL F. GOON JULIA C. PILCER PAUL S. BALIK ALEXJ. GORMAN JEFFREY A. RITHOLTZ GABRIEL BRUNSWICK JORDANA L. HAIv ARYEH L. RosKIES MARY BRUST PETER HUR THEODORE D. SAMETS MICHAEL A. CANENCIA. GAIL L. HYMAN ALEXANDRA SAMOWITZ JOSEPH M. CASTELLI NICOLE N. IDOKO NICHOLAS C. SCHOLTEN WALTER A. CIACCI CHRISTINE A. KUVEKE MELISSA B. SIEGEL ILYSSA L. COGHLAN HAROLD LAIDLAW AMANDEEP SINGH JOSHUA S. COHN CHARLES MICHAEL LuPiCA CHRISTOPHER BRODERICK SMITH GRAHAM B. COLE LEAH S. MARTIN NAOMI R. SOSNER MATTHEW WARREN DEAvERs CHIP MCCORKLE GREGORY SPRINGSTED DANIELLE ELIZABETH DEBOLD ERIC A. MITz MAX TIERMAN JOSHUA M. DRAPEKIN BENJAMIN E. NorrERMAN PATRICK R. TOTARO NICOLE A. ESCOBAR GIL OFIR YAEL TZIPORI MEAGAN L. FROEMMING JANE PARK PETER VAN VALKENBURGH JULIAN J. GINos DANIEL WoLFF DAVID A. GIROUX KYUNGEUN K. WON Imaged with the Permission of N.Y.U. Annual Survey of American Law Vi Imaged with the Permission of N.Y.U. Annual Survey of American Law SUMMARY OF CONTENTS RESTRUCTURING REGULATORY REVIEW OF ENDOCRINE- DISRUPTING CHEMICALS UNDER CALIFORNIA'S PROPOSITION 65: LESSONS FROM THE REVIEW OF BPA Rachael Rawlins 185 WHEN BATHTUB CROCODILES ATTACK: THE TIMING AND PROPRIETY OF CAMPAIGNING BY JUDICIAL RETENTION ELECTION CANDIDATES David W. Earley 239 SCALING THE PATENT SYSTEM ChristinaMulligan & Timothy B. Lee 289 DECODING FIRST AMENDMENT COVERAGE OF COMPUTER SOURCE CODE IN THE AGE OF YOUTUBE, FACEBOOK, AND THE ARAB SPRING Jorge R. Roig 319 THE BOUNDARY BETWEEN ZEALOUS ADVOCACY AND OBSTRUCTION OF JUSTICE AFTER SARBANES-OxLEY Greta Fails 397 INTO THE PERFECT STORM: THE FAILURE OF TRUSTEE ACTIONS AGAINST THIRD PARTIES Nick Axelrod 441 Imaged with the Permission of N.Y.U. Annual Survey of American Law Viii Imaged with the Permission of N.Y.U. Annual Survey of American Law \\jciprod01\productn\N\NYS\68-2\NYS201.txt unknown Seq: 1 31-JUL-13 9:20 RESTRUCTURING REGULATORY REVIEW OF ENDOCRINE-DISRUPTING CHEMICALS UNDER CALIFORNIA’S PROPOSITION 65: LESSONS FROM THE REVIEW OF BPA RACHAEL RAWLINS* ABSTRACT This article proposes a redesign of the regulatory process, espe- cially as it relates to the review of endocrine-disrupting chemicals, under California’s Proposition 65—a “public right to know law” of national significance. Drawing lessons from the Proposition 65 re- view of bisphenol A (BPA), this article proposes a redesign of the chemical listing process that would require the regulatory agency to adopt rules and require findings of fact to increase transparency and accountability. In the face of significant advocacy science fuel- ing well-represented industry opposition, and without full disclo- sure of conflicts of interest, the current regulatory framework in California assigns a mountain of review work to an inadequately specialized, part-time committee. With no clear standards and little time, the committee is assigned mixed questions of law and science where significant policy decisions are quietly hidden behind pur- portedly scientific conclusions. Rules are needed to increase trans- parency by creating an honest demarcation between policy and science so that the public may take action as necessary to further public policy objectives. Rules are also needed to set standards by which to critically evaluate conflicts of interest and advocacy sci- ence, and to require that warning labels identify the specific chemi- cal and potential exposure. This article proposes to open a public rulemaking process that would include highly trained and special- ized scientists and ultimately create a more specialized review board. Introduction ................................................ 186 R I. The Failing Regulatory System and Restoring the Promise of Proposition 65 ........................... 193 R * Faculty Fellow, Center for Sustainable Development Senior Lecturer, Uni- versity of Texas. I would like to thank Dr. Frederick S. vom Saal and Professor Wendy Wagner for their foundational work, and their suggestions and comments on this article. I would also like to thank the editors at N.Y.U. Annual Survey of American Law, and especially Kelly Parker for her diligent and careful work. 185 \\jciprod01\productn\N\NYS\68-2\NYS201.txt unknown Seq: 2 31-JUL-13 9:20 186 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 68:185 A. Proposition 65’s Potential to Unveil Dangerous Sources of Exposure ............................. 196 R B. The Evolving Role of the DART Identification Committee and the Review of Endocrine- Disrupting Chemicals ............................ 198 R II. Requirements for Transparency and Accountability . 203 R A. Defining “Clearly Shown” Consistent with Scientific Standards and Societal Choices ........ 204 R B. Defining “Reproductive Toxicity” Consistent with Advancing Science ............................... 209 R III. Research Design and Quality Standards to Assess and Evaluate Advocacy Science ........................... 216 R IV. A More Specialized Committee, Extended Review Period, and Clear Disclosure of Conflicts of Interest . 222 R V. Standards and Findings to Avoid Inappropriate Reliance on Unverified Claims of Adverse Consequences ....................................... 228 R Conclusion ................................................. 233 R INTRODUCTION One in eight women will be diagnosed with breast cancer, twelve percent under the age of forty-four.1 Breast cancer now strikes teens and tweens.2 In 2009 a ten-year-old in California un- derwent a mastectomy,3 and in 2010 so did a four-year-old from Toronto.4 One third of adults5 and seventeen percent of all U.S. 1. See SEER Stat Fact Sheets: Breast, Surveillance Epidemiology and End Results, NAT’L CANCER INST., http://seer.cancer.gov/statfacts/html/breast.html (last vis- ited Dec. 27, 2012) (based on rates from 2005–2009). 2. Madison Park, Tweens Challenged by Grown-Up Malady: Breast Cancer, CNN HEALTH (Oct. 26, 2009, 9:38 AM), http://www.cnn.com/2009/HEALTH/10/26/ tweens.breast.cancer/index.html (These cases are “extreme examples of a troub- ling trend emerging with breast cancer, medical experts say. Younger women are getting a disease that usually strikes around menopause—and no one knows why.”). 3. Ten-Year-Old
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