The John Marshall Law Review
Volume 45
Issue 3 The 10th Annual Employee Benefits
Symposium
Article 11
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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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)
http://repository.jmls.edu/lawreview/vol45/iss3/11
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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 Corruptionof Clinical Trials, MOTHER JONES,
Sept./Oct. 2010, available at http://motherjones.comlenvironment/2010/09/danmarkingson-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.comwww.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. 27CV071679), 2007 WL 5465856 (describing Markingson's death as a "psychotic,
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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.
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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.
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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
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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).
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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.3 6 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).
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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. 4 2 Despite these strong exhortations, conflicts remain
pervasive, and continue to impact patients' care.
4 3 Deep Pockets
B. Substantial Secondary Interests-BigPharma's
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 - Principlesof Medical Ethics, Am. MED. ASs'N, available at
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/codemedical-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
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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 PharmaMarketing 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 Pharmafunded 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
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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.5 2
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 welltrained, 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.5 6 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, overlyfriendly, 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").
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[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.59
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 Act 64 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.6 6 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.6 7 Aside from benefitting the individual
researchers and research institutions, society has benefitted from
this collaboration by having access to new and effective drugs.6 8
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.6 9
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."7 0 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
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[45:963
by neutral sponsors, clinical trial studies sponsored by
pharmaceutical companies overwhelmingly yield more favorable
72
results for the sponsoring company's drug. The funding effect of
clinical trials has engendered widespread suspicion of trial results
73
Despite these trials'
published under Big Pharma sponsorship.
dubious credibility, the results are then published in journals and
was
study
dyn/content/article/2009/03/17/AR2009031703786.html. The
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 IllinoisChicago, 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.
The PhysicianPayment Sunshine Act
2012]1
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.7 5
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
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[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
80
part of the Patient Protection and Affordable Care Act. 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-PhysicianFinancialRelationship
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
81
between the pharmaceutical industry and physicians. 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
83
manufactured by those same companies.
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.8 5
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" industryphysician 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
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[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.8 8
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.9 0 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.9 1 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.9 7 The Act will allow patients
access to data pertaining to their physicians' ties with Big
Pharma.9 8 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.9 9 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-ofhealth-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/wpdyn/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
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[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.1 04 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.
at
available
2010,
12,
Apr.
TIMES,
In
http://www.nytimes.com/2010/04/13/business/13docpay.html?fta=y.
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-forhired.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
1 10
Some even
relationships which yield beneficial medical results.
106. See Jeremy Olson, Pharmaceutical Companies Spending Less on
15,
2009),
NALRX
(June
Minnesota
Doctors,
http://www.twincities.com/ci 12573822?IADID=Search-www.twincities.comwww.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
2010),
1,
(Oct.
HEART.ORG
Industry, THE
Relationships with
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.
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[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-PaymentAct/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-endso.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-linkbetween-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 physicianpatient 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. 1 24 But this theory is undermined when one takes an
honest look at the power structure in the typical physician-patient
relationship. 1 25 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 physicianpatient 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 carenamely, 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. 13 1 These relationships can lead to beneficial and
innovative results in the development of new drugs and
treatments, similar to the benefits that come from industryphysician 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
2004),
(Oct.
NEUROTHERAPEUTICS
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
1,
2004),
(June
WIRE
BUSINESS
Awarenss,
Product
http://findarticles.com/p/articles/
(reporting on the
mi_mOEIN/is_2004_Oct_6/ain6224256/?tag=content;coll
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, Trackingthe American Epidemic of Mental Illness Part IV, SCOOP INDEPENDENT NEWS (June 22, 2010, 3:27 PM),
that
(claiming
HL1006/S00162.htm
http://www.scoop.co.nz/stories/
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 multibillion 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
at
available
2009,
20,
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),
com/blog/big-pharma-lawsuits-who-gothttp://www.lawyersandsettlements.
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. 3 6 The
public's need to discover industry-physician relationships is of the
utmost importance to restore patients' trust.'3 7 Undermining that
interest is worthy of a harsher penalty under the law.
C. PhysiciansShould Have the Duty to Disclose Financial
Relationshipswith PharmaceuticalCompanies
The
Sunshine
Act unquestionably
provides
more
transparency into the financial relationship between physicians
and pharmaceutical companies than ever before.13 8 The intent
behind the Act was to encourage conversations between patients
and their physicians by allowing patients to broach the subject
with their physicians. 3 9 But under the contours of the physicianpatient 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-biotechblog/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 supranote 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
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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
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Brook K. Baker, Language Acculturation Processes and Resistance to
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Commentary on Mertz's Critical Anthropology of the Socratic, Doctrinal
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Story" and "The Real Story',- Kathryn M. Stanchi, Exploring the Law of
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Race Discrimination, and Fast Food; Reginald Leamon Robinson, Race
Consciousness: Can Thick, Legal Contextual Analysis Assist Poor, LowStatus Workers Overcome Discriminatory Hurdles in the Fast Food
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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 Restorationof 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
The Impact Upon Selective Purchasing Legislation
Trade Council:
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
A Need for Clarification and
Foreign Protection Evolution:
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
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John H. Clough, Federalism: The Imprecise Calculus of Dual
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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
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Wide Web; Anne B. Ryan, PunishingThought: 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:
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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
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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
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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, JurisdictionalGerrymandering?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'sInconsistent 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 Furtheranceof 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 BayhDole 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 PostSeptember 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 Reevaluate 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 Standardof 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,
PracticalPlanningIdeas 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 PensionPlan 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 Failureof 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
TransnationalCorporationsand 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
Michael Bartolic, Dedication; Erin N. Graham,
LOOK FORWARDS:
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 FirstAmendment; 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, PharmaceuticalTort 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 CorporateEnviornment; 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;
Reconceptualizing the Boundaries of
Surabhi
Ranganathan,
"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 JeopardyStandard
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 TwentyFirst 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 PensionProtection
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
Strategieson 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 FirstAmendment; 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, TailsYou-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 DisclosureLaws and the
Effect on PharmaceuticalCompany 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
Presumptionof 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
PreserveDetailed JournalRecords of Their Official Acts; Mark J. Sundahl,
The Living Constitution of Ancient Athens: A ComparativePerspective 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 FairHousingAct 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
Rainwater Recapture: Development Regulations
Juergensmeyer,
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 SimilarDevices 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 HighSchool Campuses; Ryan Charlson, Flying Blind: The Lack of Uniformity
in Federal Pleading after Twombly and Iqbal; Andrew Meyer, BarnesWallace v. City of San Diego: "Psychological Injury" and Its Effect on
Standing; Brian Welch, Unconscionable Amateurism: How the NCAA
Violates Antitrust by ForcingAthletes 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 CorporatePersonhood 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: HarmlessError or a Challenge to
the Integrity of our Criminal Justice System?; Carson Griffis, Ending a
PeculiarEvil: The Constitution, Campaign FinanceReform, 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 FourthAmendment; 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 DoddFrank 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
PlanningProgram1961-2011; 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?