Administrative Note: Finals

The Colloquy is taking a brief respite for finals.  We will return next week with a piece by Marc Goldstein entitled Mitigating Dysfunctional Deference through Improvements in Board Composition and Board Effectiveness.  The article is part of our colloquy on whether corporate malfeasance is due, in part, to "dysfunctional deference" by board members to corporate management.  To read earlier pieces by Bernard S. Sharfman and Steven J. Toll, click here and here.

Keeping the Label Out of the Case

Mark Herrmann[*] & Pearson Bownas[**]

[download pdf]

Introduction

The FDA approves prescription drugs and medical devices for only the specific uses indicated in the product labeling that the manufacturer submits in the approval process.  A physician may determine, however, that a use not indicated in the FDA-approved labeling—an “off-label” use—would benefit a patient.  This Article argues that in medical malpractice cases involving an off-label use, the product’s label should not be admitted as evidence of either the standard of care or the physician’s alleged breach of that standard.

Quick Off the Mark? In Favor of Empowering the President-Elect

Nina A. Mendelson[*]

[download pdf]

Introduction

The United States’s presidential transition period is too long.  Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’”[1]  In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows.[2]  One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,”[3] and another noted that “everyone . . . ignores the actions of the lame duck.”[4] 

Meanwhile, President-elect Obama was faced with numerous calls for immediate action on the nation’s pressing economic and national security concerns.  A December cover of Time magazine blared, “Why Obama’s Presidency Has Already Begun . . .,”[5] and Congressman Barney Frank commented, “‘[Obama] says we only have one president at a time. . . .  I’m afraid that overstates the number of presidents we have.  He’s got to remedy that situation.’”[6]

Despite repeatedly stating that America has “‘only one [P]resident at a time,’”[7] his care in asserting no formal power, and his avoidance of foreign affairs issues,[8] Obama prior to inauguration acted in many ways as if he were President.  On economic matters, he made announcements regarding his own massive economic stimulus plan,[9] held bipartisan meetings with members of Congress, and called for congressional action on economic stimulus measures.[10]  He described the type of climate change legislation he would endorse upon taking office.[11]  Obama also encouraged President Bush to offer financial assistance to the automobile industry, and it is possible that his statements may have influenced Bush to actually do so[12]—just as with his urgings regarding bailout funds to the financial industry.[13]  In response to questions about his “much higher profile,” Obama publicly commented in November on the importance of the American people knowing that “‘their new [P]resident has a plan and is going to act swiftly and boldly’ . . . .”[14]  In short, Obama’s preinaugural statements appear to have influenced both government decisionmakers and the general public.

Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality

Bidish J. Sarma,[*] Robert J. Smith,[**] & G. Ben Cohen[***]

[download pdf]

Introduction

The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana[1] and Kansas v. Ventris.[2]  Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves.  Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment[3] prophylactic rule with the Sixth Amendment right to counsel.[4]  The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda[5] framework.[6]  This short essay explains why the Court should resist the temptation to do so.