Narrow Exception Research Articles

New Value, After LaSalle

The LaSalle opinion ended doubts about the continued existence of the new value exception to the absolute priority rule. Reorganization plans that propose to issue securities in exchange for new contributions can be crammed down but under stricter criteria. After LaSalle new value plans must meet a market test. Thus, LaSalle appeared to revolutionize the cram-down process, forcing auctions in every new value plan. This Article surveys the experience since LaSalle. The few cases that applied it never ordered an auction or a true market test. Every plan proposed by debtors was rejected. In cases where competing plans were allowed, the choice among them was made by the court rather than any market. The experience with competing plans indicates that new contributions of unique assets that will serve the debtor's strategy may overcome objections. Pursuing the justifications of the fresh start policy, that bankruptcy law will prevent the incapacitation of individuals' productivity, reveals the possibility of a narrow exception to LaSalle's requirement of a market test for every new value plan.

A New Brand of Representational Standing

To have standing in a federal suit, a litigant must meet both constitutional and prudential requirements. Under the constitutional test, which arises from Article III's Case or Controversy Clause,' the plaintiff must establish a concrete injury in fact, causation between the alleged injury and the alleged conduct of the defendant, and redressability.2 To these constitutional requirements the Court has added prudential requirements: the plaintiff must assert her own particularized rights, and the plaintiff's complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.,,3 The Court has established two narrow exceptions to this prudential doctrine. First, under associational standing, an association may bring suit on its members' behalf when the members would have standing in their own right, even if the association is not itself injured.4 Second, third-party standing allows a litigant to bring suit on behalf of a third party if the litigant and third party share a close relationship, the litigant is also injured, and the third party is hindered from bringing the suit on her own behalf.5 Recently, a divided Third Circuit held that these two narrow exceptions may be combined to create a third exception to prudential standing doctrine called derivative standing.6 Derivative standing arises when an association pursues a claim that some or all of its members would have third-party standing to bring.

ERISA: Supreme Court Holds ERISA Does Not Preempt Illinois Independent Review Law—Rush Prudential HMO, Inc. v. Moran

ERISA: Supreme Court Holds ERISA Does Not Preempt Illinois Independent Review Law-Rush Prudential HMO, Inc. v. Moran1-The U.S. Supreme Court, a 5-4 decision, held that the Employee Retirement Income and Security Act (ERISA)2 does not preempt the Illinois Health Maintenance Organization Act (Illinois Act).3 In response to widespread employer mismanagement of employee pension funds, Congress enacted ERISA to create a uniform system of federal law to regulate private sector employee benefits programs, including employment-based health coverage.4 By alleviating the administrative burden of complying with an amalgam of state laws, Congress intended to encourage and enable more employers to provide benefits for their employees and to increase access to these benefits.5 To effectuate these goals of uniform regulation, Congress expressly dictated that ERISA preempts all state laws that relate to ERISA plans.6 ERISA's unbridled preemption raised federalism concerns about the respective roles of the state and federal government. Traditionally, states have regulated insurance; to preserve some role for state authority, ERISA provides a narrow exception to its preemptive power over state laws. Under this savings clause, state laws that regulate the business of insurance are saved from ERISA preemption even if such state laws relate to ERISA plans. ERISA was enacted 1974, before the advent of health maintenance organizations (HMOs). As many commentators have noted, the emergence of HMOs as the primary providers of healthcare and health insurance the U.S. has muddled the question of ERISA preemption. The ERISA preemption quandary results from the fact that many HMOs perform multiple functions, including management and provision of healthcare, and administration of ERISA plans. Moran is the most recent Supreme Court case to address where ERISA regulation ends and state regulation begins under ERISA preemption. Writing for the majority, Justice Souter aptly surmised the general issue that has plagued ERISA jurisprudence, namely the interpretation of the difficult language of ERISA that seems simultaneously to preempt everything and hardly anything.7 In Moran, the Court addressed another issue stemming from this underlying quandary, which is whether the Illinois Act was a permissible state regulation of insurance or whether the Act was preempted by ERISA. Section 4-10 of the Illinois Act requires HMOs to submit benefit denials to an independent physician reviewer in the event of a dispute between the primary care physician and the [HMO] regarding the medical necessity of a covered service proposed by a primary care physician.8 Under the Act, an independent physician reviewer must be unaffiliated with the HMO and jointly selected by the HMO and the patient. If the independent reviewer decides that the treatment is medically necessary and is a covered service under the contract, the HMO must provide the covered service. Respondent Debra Moran was a beneficiary of petitioner Rush Prudential's health plan, which was sponsored by her husband's employer. Under its Certificate of Group coverage issued to plan beneficiaries, Rush promised to provide its participants with medically necessary health services. Under Rush's plan, each participant selected a primary care physician from a group of physicians who had a contract with Rush. According to its contract, Rush was obliged to pay for medical services performed by an unaffiliated physician only if the services had been authorized by both the primary care physician and Rush's medical director.9 Moran suffered pain and numbness her right shoulder. Her primary care physician's attempts to alleviate her discomfort through conservative treatments were unsuccessful. Moran's primary care physician recommended that Rush approve surgery by an unaffiliated specialist who had developed an unconventional treatment for Moran's condition. Despite her physician's recommendations, Rush denied Moran's request for coverage of the surgery because it found that the procedure was not medically necessary. …

Monitoring a clinical trial conducted under the food and drug administration regulations allowing a waiver of prospective informed consent: The diaspirin cross-linked hemoglobin traumatic hemorrhagic shock efficacy trial

In 1996, the US Food and Drug Administration (FDA) enacted Rule 21 CFR §50.24, which allows a narrow exception to the requirement for prospective informed consent from human research subjects in clinical trials investigating potentially beneficial therapies for acute, life-threatening conditions. The first clinical trial to be conducted under this rule was sponsored by Baxter Healthcare Corporation and approved by the FDA on November 21, 1996. This large, multicenter, randomized clinical trial was designed to compare the addition of diaspirin cross-linked hemoglobin (DCLHb) with standard care in the initial resuscitation of adults experiencing severe, uncompensated, traumatic hemorrhagic shock. Before the first planned interim analysis of the data, review of fatal adverse events revealed an imbalance in mortality between the 2 treatment groups. The Data Monitoring Committee (DMC) recommended suspension of patient enrollment 24 days later. Additional data collection and analyses confirmed the excess number of deaths in patients treated with DCLHb but failed to reveal the cause of these deaths. The trial was formally terminated after only 112 of the planned 850 patients had been enrolled. We review the events leading up to and the rationale behind the DMC recommendations for suspension of patient enrollment and trial termination. Although the DCLHb trial was unsuccessful in achieving its goals, the monitoring process worked well. Emergency research was facilitated by DMC oversight, and the interests of research subjects were protected by the actions of the DMC. [Lewis RJ, Berry DA, Cryer H III, Fost N, Krome R, Washington GR, Houghton J, Blue JW, Bechhofer R, Cook T, Fisher M. Monitoring a clinical trial conducted under the Food and Drug Administration regulations allowing a waiver of prospective informed consent: the diaspirin cross-linked hemoglobin traumatic hemorrhagic shock efficacy trial. Ann Emerg Med. October 2001;38:397-404.]

"Don't write me down": legal, clinical, and risk-management aspects of patients' requests that therapists not keep notes or records.

Although many clinicians have reported anecdotally that patients occasionally ask that treatment or evaluation notes or records not be kept, the issue has not been addressed in the literature. This article deals with the problems arising from patients' requests that their therapists refrain from record keeping, first from a legal and regulatory perspective, and then from a clinical perspective. The authors' consultative experience provides examples of variations on the theme of patients' requests not to take notes. While records must usually be kept, there exist narrow exceptions to this rule. Risk-management suggestions are offered as well. All such requests should be met first with exploration, but limits may have to be set in granting the request.

Free Speech vs. Information Privacy: Eugene Volokh's First Amendment Jurisprudence

Eugene Volokh's masterful contribution to this symposium examines caselaw, doctrine, and theory to reach the conclusion that privacy rules are not easily defensible under existing free speech law., Although permitting a narrow exception for privacy protection through contract, Volokh casts doubt on the constitutionality of the common law privacy tort of invasion of privacy and most governmental statutes, existing or potential, that impose information privacy on the private sector.2 His chief worry, as he claims at a number of junctures, is less the legal protection of personal information per se than its accompanying twisting and stretching of the First Amendment. Volokh argues that the government's safeguarding of information privacy endangers a wide range of speech unrelated to personal data.3

An approach to community consultation prior to initiating an emergency research study incorporating a waiver of informed consent.

In November 1996, the Food and Drug Administration (FDA) and the Department of Health and Human Services (DHHS) enacted rules allowing a narrow exception to the requirement for prospective informed consent when enrolling critically ill patients in clinical research studies of emergency treatments. These rules require that, prior to initiation of the study, the applicable institutional review board (IRB) assess the acceptability of the proposed research study to members of the community in which the research will be conducted. Specifically, the IRB must perform community consultation-a process during which community members learn about the proposed research and communicate their opinions regarding its acceptability to investigators or IRB representatives. The FDA and DHHS rules do not define specific acceptable methods for performing this community consultation. The objective of this study is to demonstrate the feasibility and utility of one proposed method for performing such community consultation. Parents of children being seen for minor traumatic injuries in three pediatric EDs were asked to participate in a study regarding informed consent. After consent, an instructor described to the parent a prospective, randomized, placebo-controlled trial of phenytoin for the prophylaxis of posttraumatic seizures in children with severe closed head trauma. All parents were then asked whether they would have consented for their own child's participation, if their child had suffered such head injury. The parents were further asked to explain the reason(s) for their responses. Parents of 227 children (children's mean +/- SD age 8.0 +/- 4.8 years, 57% male) were interviewed. Sixty-six percent of parents (149/227) stated they would give consent for their child's participation. Of the 149 consenting parents, 85% (126/149) cited potential benefit to their child, 72% (107/149) cited potential benefit to other children, and 60% (90/149) cited furthering medical knowledge. Of the 78 nonconsenting parents (34% of total), 54% (42/78) cited fear of adverse effects, 39% (30/78) did not want their child to be a research subject in general, 27% (21/78) believed they needed to discuss participation with family members who were unavailable, and 26% (20/78) stated they were unable to decide unless they were in the actual situation. Parental ethnicity and household income were found to influence the consent decision, while the parent's gender, religion, language, and educational level were not associated with the consent decision. Community consultation regarding the acceptability of an emergency research protocol can be obtained via interview techniques in the ED. This methodology may allow investigators to obtain data on opinion from a targeted community for IRB consideration during the review of emergency research studies proposing a waiver of informed consent.

Hendricks and the moral terrain of police power civil commitment.

In Kansas v. Hendricks, the Supreme Court relied heavily on Hendricks's lack of “volitional control” to justify the use of civil commitment as a tool of social control. The Court's decision is best explained by the rule that police power commitment is constitutional only if it is a principled and narrow exception to the primacy of the criminal justice system. Despite the Court's failure to adopt a parens patriae or treatment-appropriateness limit, the Hendricks doctrine has the potential to confine civil commitment to its appropriate domain. But the Court's application of its principle is dangerously ambiguous. “Volitional incapacity” may be an empty rhetorical ploy; or, it may embody a pernicious “jurisprudence of difference,” equating mental difference with the degradation of civic personhood. If volitional incapacity identifies those who are too sick to deserve punishment, the Court's decision is on sound moral terrain.

In Case of Emergency: No Need for Consent

SUMMARY: The Food and Drug Administration (FDA) is amending its current informed consent regulations to permit harmonization of the Department of Health and Human Services' (DHHS) policies on emergency research and to reduce confusion on when such research can proceed without obtaining an individual subject's informed consent. This regulation provides a narrow exception to the requirement for obtaining and documenting informed consent from each human subject, or his or her legally authorized representative, prior to initiation of an experimental intervention. The exception would apply to a limited class of research activities involving human subjects who are in need of emergency medical intervention but who cannot give informed consent because of their life‐threatening medical condition, and who do not have a legally authorized person to represent them. FDA is taking this action in response to growing concerns that current rules are making high quality acute care research activities difficult or impossible to carry out at a time when the need for such research is increasingly recognized.

Takin' care of business: Confidentiality under the business exemption of the FOIA

The federal Freedom of Information Act was intended to allow access to records of government, with certain narrow exceptions. However, a number of recent court decisions have limited access to federal government records. In particular, a recent federal appellate case, Critical Mass III, has limited access to records of businesses that deal with government. This article analyzes the history of the FOIA business exemption, the reasoning of Critical Mass III, and the aftermath of the case in federal courts. The article also explores its implications for public relations practitioners, who either may be seeking information about other businesses or trying to maintain confidentiality for their own client businesses.

Reconciling Professional Ethics and Prosecutorial Power: The No-Contact Rule Debate

The questions whether and when federal prosecutors may ethically contact parties who have retained attorneys about the subject of the representation recently have been the focus of considerable controversy. In this note, Alafair S.R. Burke traces the history of attempts by the Department of Justice toformulate a uniform rule governing such direct communications and analyzes the regulations the Department finalized in August 1994. Ms. Burke argues that federal government attorneys should be subject to a single national standard rather than numerous state no-contact rules, and that certain limited exceptions to the rule are justified in the criminal context. She contends, however, that the new regulations are overbroad because they go beyond the legitimate needs of law enforcement by allowing most direct contacts prior to an arrest. She offers an alternative approach that would create narrow exceptions to the no-contact rule based on the special needs offederal prosecutors. Finally, Ms. Burke argues that prosecutors who violate the rule should be disciplined by state bars but that, contrary to the Second Circuit's holding in United States v. Hammad, courts need not suppress evidence gathered in violation of the rule.

Conceptual Versus Pragmatic Approaches to Hearsay

English judges and lawyers pride themselves in their pragmatic approach to the law. Yet this pragmatism is conspicuously absent from one of the most entrenched rules of evidence the hearsay rule. This requires a court to exclude any written or oral statement not made in the course of the proceedings which is offered as evidence of the correctness of the matter asserted. A statement which is relevant independently of the real intention of the speaker2 or the truth of what is stated3 is not adduced for a testimonial purpose and is therefore outside the scope of the rule. The basis of the hearsay rule is supposedly the dangers which attach to the use of statements not made by witnesses within the confines of the courtroom where the declarant can be subjected to immediate cross-examination. However, when the question of admitting an out-of-court assertion arises in a criminal trial, no attempt is ever made to measure the real danger which the statement presents to the fact-finding process. Instead the court concentrates on conceptual issues is the statement being used testimonially? If the answer is yes, does it fall within one of the narrow and inflexible common law exceptions to the rule (all of which were created before the end of the nineteenth century) or one of the more recent, but equally limited, statutory exceptions to the rule.4 If the answer to the second question is no, the evidence is automatically rejected. There is never any question of weighing the probative value of the evidence against the risk of unreliability. In this article I argue that the only justification for excluding hearsay evidence is the dangers which a particular piece of hearsay evidence presents and that concentrating on conceptual distinctions between assertions relied upon for their truth and assertions which are not relied on for this purpose has produced irreconcilable lines of case law and has led to the exclusion of evidence which, because of its probative value and reliability, should have been admitted.

Law, social science and the “brainwashing” exception to the first amendment

AbstractLitigation in the “cult wars” has shifted from “deprograming” cases to civil suits by ex‐converts based on “brainwashing” claims, and to criminal defenses claiming incapacity due to cultic brainwashing. Early cases were decided on the basis of first amendment derivations barring judicial inquiries into conversion processes and religious authenticity. In 1988 the California Supreme Court carved out a narrow exception to this doctrine to be applied to circumstances where “coercive persuasion” is combined with concealment of a group's identity. The Court's opinion entailed characterizations of the process and consequences of brainwashing which are problematic from the standpoint of social science. Several key questions must be resolved before brainwashing theories can make a constructive contribution to litigation involving religious groups. These questions relate to broader issues involving the nature, causes and indicators of involuntariness, and the closely related problem of drawing the line or identifying the exact point on a continuum beyond which the means or intensity of indoctrination becomes incapacitating. Although the 1988 California decision did not resolve these issues, they were considered from 1988‐91 by several courts making procedural rulings on the admissibility of “expert” testimony on brainwashing/psychologicd coercion. A concluding section relates this legal to the duality of ‘soft’ vs. ‘hard’ determinism in social science.

TheLucasCase: Regulatory Takings Past, Present, and Future

Abstract If you can't use your land for any economic purpose because of a land-use regulation, government has to pay you compensation. For the present (and with a narrow exception) that's the rule announced by the U.S. Supreme Court by a vote of 6-to-3 in a 75-page decision on June 29 in Lucas v. South Carolina Coastal Council, No. 91-453, 44 ZD 302.

Comparable Worth and Discrimination in Labor Markets

Under the Equal Pay Act of 1963,1 employers are prohibited from paying men and women different amounts for identical work if the only justification for the differential is sex. Similarly, Title VII of the Civil Rights Act of 19642 prohibits other forms of discrimination against women. For example, employers (with certain narrow exceptions) cannot lawfully refuse to hire women for particular jobs. But an employer in a particular business who treats men and women equally in all respects does not violate either the Equal Pay Act or Title VII. Thus, an employer of nurses who pays female and male nurses the same amount and stands willing to hire both cannot be sued under current anti-discrimination laws. Because such an employer has not discriminated between male and female nurses, he has not acted illegally. The employer could be liable, however, under the theory of comparable worth. This theory is based on the premise that jobs of equivalent or value to an employer or to society as a whole should be compensated equally even if the jobs are dissimilar in content. The theory assumes that the proper remedy when two jobs are comparable, but unequally compensated, is for the employer of the lower-paying job to raise employees' compensation to the level of the higher-paying job. Thus, the employer of nurses who did not discriminate between male and female nurses could nevertheless be liable under a theory of comparable worth if a

The Effect of the Private Foundation Provisions of the Tax Reform Act of 1969 on Community Development Corporations

Ambrose Bierce defined a lawyer as [o]ne skilled in circumvention of the law,' and it seems likely that it was a similar view of certain exempt organizations which led Congress to enact the provisions of the Tax Reform Act of I969.2 The i965 Treasury Report on Private Foundations had set forth convincingly and at length both the failure of privately controlled foundations to police their own activities, and the law's incapacity to cope with the abuses found to exist.3 Private foundations are typically established as nonprofit corporations under state law and, along with other qualifying organizations, may obtain an exemption from federal income taxation under section 50I(c)(3) of the Internal Revenue Code of I954 because they are organized and operated for certain exempt purposes, principally those involving charitable, educational, scientific, or literary pursuits. With a few narrow exceptions organizations so exempt (whether private foundations or not), may accept contributions which are deductible to their donors under section I70. The conclusion of Congress evidenced in the Tax Reform Act was that many private foundations, while affording their financial supporters a tax deduction, were not using those contributions for the stated exempt purposes. Although prior law had provided for sanctions in certain extreme cases, it had not proved capable of dealing effectively with abuses on a lesser scale. The private foundation provisions of the Act attempt to remove that inadequacy by utilizing a series of graduated taxes to discourage private foundations from engaging in any of several kinds of activities viewed as improper. Congress cannot be said to have had community development corporations (CDC's) in mind when it enacted the private foundation provisions. Nevertheless, any CDC exempt under section 50I(c)(3), as every other exempt organization, must gauge what impact the private foundation provisions will have on its operations. In addition, a CDC not yet exempt but contemplating the submission of an application for exemption to the Internal Revenue Service will wish

Abortion

As part of the increasingly open discussion of sexual matters in our society, new public attention has been focused on the abortion "problem." In America, induced abortion (which medically can be a simple procedure) has been subject to legal proscription and administrative control. The current narrow legal exception for "therapeutic abortion" does not accord with accepted standards of good medical prac tice, and is now being challenged by medical practitioners and organizations. Instead of curbing abortion, the criminal-law ban simply diverts the demand for such services to illicit sources. The results are a thriving illegal business; subjection of abortion-seekers to the dangers of criminal abortion; a process of "criminalization"; and—for women in the lower socioeconomic strata—discriminatory treatment, according to their financial and informational resources. An important trend toward liberalization of abortion laws is related to broader currents of social change in our society—involving norms governing control, and the social roles of women. The keynote of such change is the extension to women of areas of free choice hitherto not accorded them. How far this trend will be carried with respect to freedom of abortion remains to be seen.