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Stanford Law’s Michele Landis Dauber Receives Five Awards for First Book

The American Society for Legal History announced today that it has awarded its 2014 John Philip Reid Award to Michele Landis Dauber, Stanford Law School professor of law and Bernard D. Bergreen Faculty Scholar, for her first book, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State.

Michele Landis Dauber

Michele Landis Dauber

In an email announcing the award, Sophia Z. Lee, chair of the awards committee and a professor of law and history at the University of Pennsylvania Law School, hailed the book as “magnificent.” Lee wrote to Dauber that the award committee members were “incredibly impressed not only by your multiple important historiographical interventions, but also your creative use of sources.”

The book was also honored this year with the American Historical Association’s 2014 Littleton-Griswold Prize, the American Sociological Association’s 2014 Sociology of Law Section Distinguished Book Award and the American Political Science Association’s 2014 J. David Greenstone Book Award for the best book in politics and history. In 2013 the Law and Society Association gave the book an honorable mention in its James Willard Hurst Prize in American Legal History competition.

“I am surprised and very pleased the book received so much recognition,” said Dauber. “To be honest, I get excited when anybody reads anything I write and finds it useful or informative.”

In The Sympathetic State, Dauber argues that the United States’ long tradition of providing federal disaster relief set the stage for the American social welfare state. “It’s really an important story in our country’s history about how the government has cared for people when they were in need through no fault of their own,” Dauber explained.

“The book has relevance not only regarding the current debates about the Affordable Care Act and Medicaid but also with respect to the debate about emergency response,” she said. “As climate change makes weather events more severe and frequent, the federal government’s policy about how we take care of people will become more important. For example, if people live in an area that often gets flooded, will we always compensate them? What happens when people have to move?”

The book was published in 2013 by the University of Chicago Press.


Stanford Scholars Document Declining Medical Liability Claims and Forecast Future Trends

Doctor with clipboardSTANFORD, Calif., October 30, 2014 – A new study co-authored by two professors from Stanford and one from Harvard documents a sharp reduction in the rate of paid medical liability claims and identifies six developments that are likely to shape medical liability policy during the next decade.

The study, published today in the Journal of the American Medical Association (JAMA), is the work of Stanford Professors Michelle M. Mello and David M. Studdert, who share joint appointments with Stanford Law School and the Stanford University School of Medicine, and Allen Kachalia, an associate professor with Harvard Medical School.

The JAMA article says the researchers found that rates of paid claims against physicians decreased from 18.6 to 9.9 paid claims per 1,000 physicians between 2002 and 2013, with an estimated annual average decrease of 6.3 percent for medical doctors and a 5.3 percent decrease for doctors of osteopathy. It is based on data from the National Practitioner Data Bank and the American Medical Association’s Physician Masterfile.

Among claims that resulted in some payment, the authors found that the median amount paid increased from $133,799 in 1994 to $218,400 in 2007, an average annual increase of 5 percent per year. Since 2007 the median payment has declined slightly, reaching $195,000 in 2013, an average annual decrease of 1.1 percent. These data came from the Medical Liability Monitor’s Annual Rate Survey.

Good time to consider improvements

The study notes that the current stability in claims makes this the ideal time to be thinking about reforms in the medical liability system. “After years of turbulence, the medical liability environment has calmed,” said Mello. “Although many aspects of the malpractice system are dysfunctional, causing angst for physicians, the cost of malpractice claims and insurance have been stable for the last few years and the number of claims has been declining.”

She added, “Usually, attention is only focused on reform during ‘malpractice crises,’ but highly charged political environments are not conducive to cool-headed policy decisions. This current period of calm is a good time to be thinking about reforms that could improve our medical liability system.”

The authors report that traditional liability reforms fail to address problems with the malpractice system’s two core functions: compensating negligently insured patients and deterring substandard care. For example, they note that studies of tort reforms—law changes such as caps on noneconomic damages that are designed to reduce the volume and cost of malpractice litigation—suggest that they are only modestly effective in controlling costs.

“These traditional reforms have been disappointing, especially in light of the political battles that have to be fought to pass them,” said Mello. “Increasingly, policy makers are interested in finding better approaches.”

The authors describe seven nontraditional approaches to medical liability reform, noting they are “more politically and ethically appealing because they stand to benefit not just physicians and insurers but also patients.”

Among the most promising innovations, they say, are communication-and-resolution programs in which health care practitioners and institutions openly discuss adverse outcomes with patients and proactively seek resolution, which may include offering compensation before the patient files a claim. Early programs pioneered by the Lexington (Ky.) Veterans Affairs hospital and the University of Michigan Health System have reported substantially lower malpractice claims and costs. Stanford University reported a 36 percent decrease in claim frequency and a 32 percent average annual reduction in insurance premiums in the first three-and-a-half years of its program.

Future trends over next 10 years

The authors predict six forces will reshape medical liability policy during the next decade:

  • Continued debates and disagreement about traditional tort reforms, especially damages caps, in courts, in legislatures and on ballot initiatives, which “sap political energy and divert attention from alternatives that may achieve what caps will never deliver: a more just, reliable and accessible liability system that promotes patient safety”
  • Expansion of communication-and-resolution programs. For starters, the Agency for Healthcare Research and Quality is planning to support a nationwide scale-up of this approach.
  • Greater emphasis on laws that facilitate rapid private resolutions of medical injury disputes
  • More consideration of “safe harbor” laws that give health care practitioners and institutions a defense to a malpractice claim if they can show they followed an applicable clinical practice guideline in caring for a patient
  • Growing interest in leveraging the national movement toward consolidation in health care to improve resolution of medical injuries. As more physicians are employed by hospitals and health systems, those organizations can play a more prominent role in the liability system.
  • The next malpractice insurance crisis. Liability insurance crises have recurred in regular cycles since the expansion of malpractice litigation in the 1960s and, the authors say, “another may well be in the near future.”

The report concludes, “Action now to reduce the amplitude of the next medical liability cycle is both prudent and feasible. Further testing of nontraditional reforms, followed by wider implementation of those that work, holds the most promise. Prospects for permanent improvement in the medical liability climate depend on it.”

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.


Stanford Law School’s Allen Weiner Reports to United Nations on Ongoing Human Rights Violations by Vietnamese Government

Vietnamese activists

The original petitioners: Vietnamese activists who have been detained

STANFORD, Calif., October 21, 2014—Allen Weiner, director of the Stanford Program in International and Comparative Law at Stanford Law School, today filed an update concerning the petition initially submitted to the United Nations Working Group on Arbitrary Detention (UNWGAD) in Geneva in July 2012 contesting the illegal arrest and ongoing detention of 16 Vietnamese social and political activists.

The update reports on the continuing failure of the Socialist Republic of Vietnam to comply with the opinion rendered by the UNWGAD in August 2013, which found that the deprivation of liberty of these activists contravened Vietnam’s international legal obligations under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. The Working Group called upon the Vietnam government to immediately release the detainees and provide them with adequate reparation.

The update notes that despite the unambiguous nature of the UNWGAD’s August 2013 opinion, the Vietnamese government is still violating its clear legal obligations under international law. Eleven of the activists continue to be arbitrarily detained by the Vietnamese government in violation of its international human rights obligations.

In addition, although five of the activists have completed their prison sentences, they still face ongoing unlawful restrictions on their liberty through the exercise by the Vietnamese government of “administrative detention,” a form of restriction on their freedom of movement which is severely curtailing their livelihood and which is also in violation of Vietnam’s international obligations.

In addition, the update reports on the Vietnamese government’s malicious mistreatment of persons covered by the UNGWAD’s decision. The update notes with particular concern the cruel and degrading treatment of Francis Dang Xuan Dieu, a blogger and member of the nonviolent pro-democracy party Viet Tan.

 Human rights violations

According to a former prison inmate, Dieu has been held in solitary confinement and faced physical assault for maintaining his innocence and refusing to wear a prisoner uniform. Prison authorities have reportedly withheld food and clean water and forced Dieu to remain in a tiny cell without ventilation or even basic sanitation.

The mistreatment of Dieu is a clear violation of Article 19(1) of the International Covenant on Civil and Political Rights, which provides: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” It is also inconsistent withArticle 5 of the Universal Declaration of Human Rights, which states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

This conduct is also flatly inconsistent with the representations made by the Vietnamese government upon its signing on November 7, 2013, of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Vietnamese ambassador to the United Nations at that time asserted that, by signing the convention, Vietnam was “reaffirm[ing] its unwavering commitment to prevent all acts of torture and cruel, inhuman or degrading treatment of persons and to better protect and promote fundamental human rights.”

Given the continuing mistreatment of those engaged in nonviolent forms of political and social activism in Vietnam and the Vietnamese government’s ongoing unlawful detention of such activists, the update urges the UNWGAD to take urgent action on behalf of Francis Dang Xuan Dieu and the other petitioners, such as requesting a country visit to Vietnam, including a prison visit with Dieu; submitting an inquiry to the Vietnamese government regarding the current treatment and condition of Dieu; and reiterating its previous opinion and renewing its request for the unconditional release of all 16 social and political activists covered by the Working Group’s August 2013 opinion.

Violation of international law

“In view of the U.N. Working Group’s opinion in this case, there can be no reasonable question about whether Vietnam’s detention of these social and political activists is permissible under international law. It is not, but is simply governmental repression against those seeking to exercise civil and political rights that are protected under international law,” said Allen Weiner, senior lecturer at Stanford Law School and counsel for the petitioners.

“The refusal of the Vietnamese government to release these petitioners, notwithstanding the clear decision of the U.N. Working Group, reflects a deep disregard for international law and raises profound questions about the role Vietnam wishes to play in the international community,” he noted. “Above all, it is a deep injustice to these activists, who seek only to engage in the kind of speech and political and social advocacy that we take for granted in a free society.”

In its opinion issued in August 2013, the UNGWAD, which is responsible for examining cases of arbitrary detention, stated expressly that that the holding and expressing of opinions, including those which are not in line with official government policy, are protected under Article 19 of the International Covenant on Civil and Political Rights. The Working Group noted that the provisions of Vietnamese law on the basis of which the petitions were convicted are “vague and overly broad.” It found that the deprivation of liberty of the petitioners, as well as the procedural deficiencies in their trials, contravened numerous provisions of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

The petitioners are Dang Xuan Dieu, Ho Duc Hoa, Nguyen Van Oai, Chu Manh Son, Dau Van Duong, Tran Huu Duc, Le Van Son, Nong Hung Anh, Nguyen Van Duyet, Nguyen Xuan Anh, Ho Van Oanh, Thai Van Dung, Tran Minh Nhat, Ta Phong Tan, Tran Vu Anh Binh, and Nguyen Dinh Cuong.

Read about the U.N. Working Group’s favorable ruling on the original petition.

About Allen S. Weiner

Allen S. Weiner is senior lecturer in law, director of the Stanford Program in International and Comparative Law, and co-director of the Stanford Center on International Conflict and Negotiation at Stanford University. He is an international legal scholar with expertise in such wide-ranging fields as international and national security law, the law of war, international conflict resolution, and international criminal law (including transitional justice). His scholarship focuses on international law and the response to the contemporary security threats of international terrorism, the proliferation of weapons of mass destruction, and situations of widespread humanitarian atrocities. He also explores the relationship between international and domestic law in the context of asymmetric armed conflicts between the United States and nonstate groups and the response to terrorism.


Supreme Court urges states to take lead in same sex marriage, say Stanford Law professor and others at Stanford

This story was written by Clifton B. Parker of Stanford News Service.

Same sex marriage took another step this week toward becoming the law of the land – at least how it’s defined individually in all 50 states – according to Stanford scholars.

Earlier this week, and in a bit of a surprise, the U.S. Supreme Court announced that it will not hear any of the seven same sex marriage cases pending before the court. Jane Schacter, a Stanford Law School professor and leading expert on sexual orientation law, said the immediate effect is that the high court will allow marriage to go forward in the states involved in the litigation and eventually in every state in these circuits.

People wait in front of Supreme Court

People wait to enter the Supreme Court on Oct. 6, 2014, as it begins its new term. Photo by Scott Applewhite, AP

“If the Supreme Court declines review from a circuit court ruling, that ruling binds every state in that circuit,” noted Schacter, the William Nelson Cromwell Professor of Law.

Schacter said she believes the likely meaning of the Supreme Court’s action denying review is that the court won’t take up a same sex marriage case until a federal appeals court upholds a state ban on same sex marriage: “That would create a split among the federal appeals courts that the court might feel obliged to resolve.”

As she pointed out, in 2013 the court struck down the federal Defense of Marriage Act, and every federal appellate court to hear a case since that decision has ruled in favor of marriage equality.

“We of course don’t know what the court would rule if it did take a case,” said Schacter, who said there may well be a narrow majority on the court in favor of marriage equality.

As for those who oppose same sex marriage, she said they will likely continue to argue that each state ought to set its own marriage policy and that nothing in the Constitution grants same sex couples a right to marry.

“They will correctly point out that the court’s decision not to grant review earlier this week is not the same thing as a decision affirming that laws banning same sex marriage are unconstitutional,” said Schacter.

Litigation is underway in several federal circuits that have not yet ruled on marriage equality, she added. If there was a “circuit split,” Schacter said, the “Supreme Court might well decide to grant review and give us a conclusive national answer.”

‘Sense of justice,’ economic inequality

Estelle Freedman, a Stanford history professor specializing in women’s history and the history of sexuality, offered an explanation for the shift in public opinion toward favoring same sex marriage in recent years.

“For one, it appeals to people’s sense of justice,” said Freedman, the Edgar E. Robinson Professor in U.S. History. Before last year, federal law barred same sex couples from availing themselves of many tax benefits that flow freely to heterosexual married couples. Social Security survivor benefits are another issue.

“The concept of marriage as a long-term commitment is important to many people, so it’s acceptable to extend it to lesbians and gay men,” said Freedman. The legal arguments against same sex marriage were focused on how it might corrupt children or destroy the institution of marriage. Multiple courts have already found such argumentation to be unfounded, she added.

“In short, this court is not going to make it a federal case, ruling for the nation,” she said.

Within the LGBTQ community, Freedman said, there is debate about the broader effects of the same sex marriage movement. Some critics point out that concentrating on marriage rights is a conformist strategy that may privilege those with the most resources and overlook problems of economic inequality.

Even with the support for same sex marriage, society still has a problem with homophobia and bullying toward queer people, especially the young and underprivileged, she said.

“Homophobic violence is often experienced by those who are economically vulnerable, including gay youth, people of color and trans people,” said Freedman.

She said that while she hoped the recent favorable court rulings would help undermine these hostile attitudes, much work remains to be done beyond the courthouses of America.

To give just one example, revised educational curricula for K-12 students that include LGBT history and issues could be helpful in encouraging respect for diversity, Freedman said.

Changing families, research findings

Michael Rosenfeld, an associate professor of sociology at Stanford who studies race, ethnicity and families, said the percentage of Americans supporting same sex marriage has risen by about 1.5 percent per year in recent years.

As a result, he said, public support for same sex marriage has in many states gone from just less than 50 percent to just more than 50 percent, which allowed same sex marriage to win at the ballot box in several states in 2012.

“Most of that change is due not to individuals changing their minds, though some individuals have certainly changed their minds, but rather to the arrival into adulthood of people from more recent birth cohorts, who have grown up in environments in which gay rights are not controversial,” he said.

Rosenfeld described the generational gap in attitudes toward gay rights as “enormous.”

“Societal change due to more recent birth cohorts replacing older birth cohorts is called ‘demographic metabolism,'” said Rosenfeld.

“Once people perceive that support for same sex marriage is a majority position, as it is now in many states, same sex marriage starts to be perceived as inevitable,” he said.

Moreover, social science research shows that the public increasingly perceives same sex couples – especially same sex couples raising children – as families, according to Rosenfeld.

As scholars published more research in the past 10 years on children raised by same sex couples, the findings revealed that those children have “good outcomes,” he noted.

“The social science consensus that children raised by same sex couples are at no disadvantage has been acknowledged by the various scholarly professional organizations and by the courts,” Rosenfeld said.


A. Douglas Melamed Joins Stanford Law School as Visiting Professor

One of Stanford Law School’s new visiting professors has argued precedent-setting antitrust cases, has held senior positions in the U.S. government and has been general counsel of a major multinational corporation. And during his final year at Harvard Law School, he coauthored a paper on law and economics that remains one of the most cited and influential law review articles of all time.

Now A. Douglas Melamed, the Herman Phleger Visiting Professor, is preparing to teach a new course during winter quarter at the law school called “Going Global: Advising Clients in a Global Economy” with Professors Robert Daines and Jenny Martinez. He’ll draw upon his long experience as a partner in an international law firm and as head of the Antitrust Division of the U.S. Department of Justice during the Clinton years and his more than four and one-half years as senior vice president and general counsel of Intel Corporation.

A. Douglas Melamed

A. Douglas Melamed

“Commerce takes place increasingly in the global economy,” Melamed said. “We learn in law school analytical tools for navigating the U.S. legal system. But the law is very different even on the European continent. In non-Western countries, the differences are even greater. It’s important for students to learn that the tools of American law are of limited value once international borders are crossed.”

“Doug Melamed brings spectacular experience to Stanford.  He has had a distinguished career as a private attorney, led the antitrust division of the Department of Justice and guided a major multinational corporation as its chief lawyer.  Beyond this, he has exceptional intellectual range and creativity.  Our students and our community are so lucky to be able to learn from him,”  said M. Elizabeth Magill, dean and Richard E. Lang Professor of Law at Stanford Law School

Don’t Drink the Kool-Aid

One of the most important lessons Melamed has learned is that, in counseling on business and legal strategies and in litigation, one cannot assume others see problems or issues the same way. “You can’t be a good lawyer if you’re drinking the Kool-Aid,” he explained. “You’ve got to anticipate how the situation looks to others and what those whose background and interests are different from yours are going to think and say.”

When Melamed prepares for an important legal argument, he spends hours jotting down all the questions he can imagine that others might ask about the case – and then proceeds to answer them. That enables him both to prepare for the argument and to test the soundness of his position.

Melamed entered Harvard Law School in 1967 after earning a BA in political science and economics at Yale. “I loved what I studied in college, but I didn’t take law school as seriously as I think I should have,” he recalled. “I didn’t expect to practice law, and maybe I was too young.” But he became excited about law while writing a paper for a third-year seminar.

He sat down with a blank legal pad and created a matrix that became a framework for the nascent field of law and economics. He speculates that the novelty of the approach might have reflected in part that he was taking a fresh look at the problem. “I wasn’t steeped in the literature,” he explained. Melamed and the professor, Guido Calabresi (now a judge on the U.S. Court of Appeals for the Second Circuit), turned the paper into an article, “Property Rules, Liability Rules and Inalienability: One View of the Cathedral,” that has been cited thousands of times and reprinted in anthologies around the world.

After law school, Melamed clerked for Judge Charles M. Merrill of the U.S. Court of Appeals for the Ninth Circuit. Then he began practicing law, first as an associate and later as a partner with the law firm of Wilmer, Cutler & Pickering in Washington, D.C. His second oral argument was before the U.S. Supreme Court on behalf of Kaiser Steel Corporation. Since then, he has argued on behalf of other clients in numerous federal and state appellate and trial courts and before various administrative agencies.

Taking on Microsoft

Joel Klein tapped Melamed in 1996 to be his principal deputy when Klein headed the U.S. Department of Justice’s Antitrust Division. In that role, Melamed worked closely with Klein in developing the government’s legal theories for the case that accused Microsoft of monopolizing personal computer operating systems. (Stanford Law School Professor Phil Malone was the factual architect of the case.)

During his years with the DOJ, Melamed also oversaw numerous other investigations and cases, as well as the Antitrust Division’s international activities and its policies regarding the communications and electricity industries. When Klein left the DOJ, Melamed succeeded him as acting head of the Antitrust Division until the inauguration of President Bush in 2001.

Melamed has been a leader in the antitrust bar and has influenced the evolution of antitrust law through articles he has written and by cases on which he worked at the Justice Department and in private practice. After he returned to what became Wilmer Cutler Pickering Hale and Dorr LLP, his most important cases included Rambus v. the Federal Trade Commission (FTC) in the U.S Court of Appeals for the District of Columbia Circuit and U.S. Philips v. the International Trade Commission (ITC) and Princo v. ITC, both in the Federal Circuit. All required challenging and creative analysis of legal problems – an exercise Melamed enjoys.

For example, in the Rambus case the FTC accused the chipmaker of “a pattern of anticompetitive and exclusionary acts and practices.” Melamed’s argument on behalf of Rambus defined important limits on the role of the antitrust laws in governing business conduct. The court ruled in favor of Rambus.

“We took positions in those cases that were novel, that people didn’t expect to prevail, and we succeeded,” he said. “We made new law, and I think we made good law.”

In 2009 Melamed moved to California to join Intel as senior vice president and general counsel. His job includes overseeing both Intel’s legal department and its global public policy team.

“I am excited about the opportunities I will have at Stanford – to think and write about some legal issues in which I have been interested for some time, to help develop a needed new course focused on legal problems in the global economy, and to try to pass on to law students some of what I have learned over the past 40 years,” he said.

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.