California Western School of Law

Law Review, California Western

California Western Law Review 
Volume 43 
Number 1 Selected Essays from the Western 
Law Professors of Color Conference 2006 
Article 1 
2006 
Table of Contents 
California Western Law Review 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
Law Review, California Western (2006) "Table of Contents," California Western Law Review: Vol. 43 : No. 1 
, Article 1. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol43/iss1/1 
This Prefatory Matter is brought to you for free and open access by CWSL Scholarly Commons. It has been 
accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For 
more information, please contact alm@cwsl.edu. 
CALIFORNIA WESTERN LAW REVIEW
VOLUME 43 FALL 2006 NUMBER 1
TABLE OF CONTENTS
SELECTED ESSAYS FROM THE WESTERN LAW PROFESSORS
OF COLOR CONFERENCE 2006
FOREWORD: CONFRONTING THE RIGHTS DEFICIT AT HOME AND
ABROAD
R uben J. G arcia ............................................................................. 1
CONFRONTING THE RIGHTS DEFICIT AT HOME: IS THE NATION
PREPARED IN THE AFTERMATH OF KATRINA? CONFRONTING THE
MYTH OF EFFICIENCY
M aria Isabel M edina ....................................................................... 9
THE CONTINUING STORM: How DISASTER RECOVERY EXCLUDES
THOSE MOST IN NEED
Jonathan P. Hooks and Trisha B. Miller ....................................... 21
How SECTION 5 OF THE VOTING RIGHTS ACT FAILED DISPLACED NEW
ORLEANS VOTERS
R ea L. H olm es ............................................................................. 75
PROPERTY LESSONS IN AUGUST WILSON'S THE PIANO LESSON AND THE
WAKE OF HURRICANE KATRINA
Rachel A. Van Cleave ................................................................... 97
PATCHING LEAKS IN THE DIVERSITY PIPELINE TO LAW SCHOOL AND
THE BAR
C harles R . C alleros ........................................................................ 131
LAW, POLICY, AND STRATEGIES FOR AFFIRMATIVE ACTION
ADMISSIONS IN HIGHER EDUCATION
C harles R . C alleros ........................................................................ 15 1
1
Law Review: Table of Contents
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THE H'AINT IN THE (SCHOOL) HOUSE: THE INTEREST CONVERGENCE
PARADIGM IN STATE LEGISLATURES AND SCHOOL FINANCE REFORM
B ryan L. A dam son .......................................................................... 173
INTERNATIONAL MIGRATION AND SOVEREIGNTY REINTERPRETATION IN
MEXICO
Ernesto H em dndez-L pez .............................................................. 203
COMMENT
PARENT-CHILD RELATIONSHIP TRUMPS BIOLOGY: CALIFORNIA'S
DEFINITION OF PARENT IN THE CONTEXT OF SAME-SEX RELATIONSHIPS
P aula R oach ................................................................................... 235
2
California Western Law Review, Vol. 43 [2006], No. 1, Art. 1
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English

Adamson, Bryan L.

The H\u27aint in the (School) House: The Interest Convergence Paradigm in State Legislatures and School Finance Reform

Walker, George K.

Defining Terms in the 1982 Law of the Sea Convention IV: The Last Round of Definitions Proposed by the International Law Association (American Branch) Law of the Sea Committee

Robbins, Melissa

Powerful States, Customary Law and the Erosion of Human Rights Through Regional Enforcement

Aka, Philip C.

Assessing the Impact in Grutter on the Use of Race in Law School Admissions

California Western Law Review 
Volume 41 Number 2 Article 1 
2005 
Table of Contents 
California Western Law Review 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
Law Review, California Western (2005) "Table of Contents," California Western Law Review: Vol. 41 : No. 2 
, Article 1. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol41/iss2/1 
This Prefatory Matter is brought to you for free and open access by CWSL Scholarly Commons. It has been 
accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For 
more information, please contact alm@cwsl.edu. 
CALIFORNIA WESTERN LAW REVIEW
VOLUME 41 SPRING 2005 NUMBER 2
TABLE OF CONTENTS
ARTICLES
THE FIRST AMENDMENT, THE MEDIA AND THE CULTURE WARS:
EIGHT IMPORTANT LESSONS FROM 2004 ABOUT SPEECH,
CENSORSHIP, SCIENCE AND PUBLIC POLICY
C lay C alvert ................................................................................... 325
THE SHAREHOLDER DIRECT ACCESS TEETER-TOTTER: WILL
INCREASED SHAREHOLDER VOICE IN THE DIRECTOR
NOMINATION PROCESS PROTECT INVESTORS?
Patty M . D eG aetano ....................................................................... 361
ESSAY
ORGANIZATIONAL BARRIERS TO CREATIVITY IN LAW SCHOOLS
AND THE LEGAL PROFESSION
Katharine Rosenberry .................................................................... 423
NOTE
PEOPLE V. SANDERS: TOWARDS A UNIFIED POLICY
PROTECTING THE RIGHTS OF JUVENILES
K urt A . W eiser ................................................................................ 459
COMMENTS
A JURY OF YOUR PEERS?: How JURY CONSULTING MAY ACTUALLY
HELP TRIAL LAWYERS RESOLVE CONSTITUTIONAL LIMITATIONS
IMPOSED ON THE SELECTION OF JURIES
R achel H artje ................................................................................. 479
RECENT DEVELOPMENTS IN REPRODUCTIVE HEALTH LAW AND
THE CONSTITUTIONAL RIGHTS OF WOMEN: THE ROLE OF THE
JUDICIARY IN REGULATING MATERNAL HEALTH AND SAFETY
E lizabeth Sp iezer ............................................................................ 507
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Liang,, Bryan A., M.D., Ph.D., J.D.

CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
VOLUME 36 FALL 2005 NUMBER 1
INTERNATIONAL DRUG IMPORTATION: ISSUES IN PUBLIC
POLICY, PATIENT SAFETY, AND THE PUBLIC HEALTH
BRYAN A. LIANG, M.D., PH.D., J.D.*
This issue of the California Western International Law Journal
memorializes the proceedings of the First Annual San Diego Health
Policy Conference, International Drug Importation: Issues in Public
Policy, Patient Safety, and the Public Health. Leaders from medicine,
law, public policy, academia, and patient care groups gathered to-
gether on June 3-4, 2005 to discuss the issue of international drug im-
portation from their stakeholder perspectives. The conference drew
attendees from around the world, including representatives from in-
* Executive Director and Professor of Law, Institute of Health Law Studies, California
Western School of Law; Co-Director and Adjunct Associate Professor of Anesthesiology, San
Diego Center for Patient Safety, University of California, San Diego, School of Medicine,
San Diego, California. Email: baliang@alum.mit.edu. B.S., MIT; Ph.D., University of Chi-
cago; M.D., Columbia University College of Physicians & Surgeons; J.D., Harvard Law
School. Thanks to the Castetter Fund for its generous support of this conference; Dean Steven
Smith, Associate Dean Janet Bowermaster, Ms. Franki Fitterer, and Assistant Dean David
Bowers for their generous financial, organizational, and moral support for the event; Pam
Tait, Executive Assistant of the Institute of Health Law Studies, for her complete organization
and coordination of the necessary activities surrounding the event before, during, and after the
festivities; Mr. Scott Parish for his outstanding video skills; and students Ms. Laura Lin, Ms.
Kate Vick, Ms. Ailine Gaba, Ms. Anna Dubiak, Ms. Lisa Allen, Ms. Andrea Castaneda, Mr.
Kurt Weiser, and Ms. Lana Linderman for their generous assistance at the conference. Of
course, we are indebted to the speakers and the audience for their insights, discussion, and
other contributions to our understanding of the issues.
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Liang,: Introduction
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2 CALWORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 36
dustry, European patient care groups, law enforcement, and other im-
portant bodies to vigorously and rigorously debate the concerns sur-
rounding drug importation.
In the first piece, Over the Virtual and Geographic Borders: Un-
derstanding Importation and Counterfeit Drugs, I attempt to contex-
tualize the debate on drug importation. I provide some information on
the traditionally safe U.S. system, but also outline some breaks in pro-
tection that have resulted in counterfeit drugs being produced and im-
ported into this country. I also try to review some incentives that lead
to the problem of counterfeit drugs and the movement of international
crime and terrorist organizations into this area, including ease of pro-
duction, exceedingly small penalties, illicit Internet sales, and a porous
domestic gray market system that allows for fake drugs to enter into
the medicine supply. This environment may create systems issues
that, without deeper inspection, may allow our heretofore relatively
safe domestic supply to become tainted with an influx of fakes, result-
ing in nontreatment, wrong treatment, or harm associated with the
fake materials used, including death. Importantly, consumers must be
their own last barrier to harm and use tools, such as the Partnership for
Safe Medicines SAFE DRUG checklist, which may be instrumental in
saving lives.
We then move to the health care provider perspective. Physicians
are key stakeholders in the debate on drug importation. Edward
Langston, a practicing physician and a pharmacist, Member of the
American Medical Association Board of Trustees, Commissioner of
the Joint Commission on Accreditation of Healthcare Organizations,
and a professor at the Purdue School of Pharmacy provides his per-
spective in the piece The Quality Quandary. Dr. Langston notes the
incredible number of prescriptions written in the United States--over
three billion each year. The focus of the physician, however, is that
the medications being provided to their patients are both safe and af-
fordable. Yet on a practicing physician level, many challenges are
created by importation. The Internet, the difficulty with the FDA
regulating drugs from Canada and other countries, and an open distri-
bution chain create safety risks that may result in harm to patients.
Dr. Langston calls for implementation of technological solutions for
tracking and tracing medicines, as well as authenticity verification, be-
fore importation is broadly accepted.
Ms. Arlene Luu then provides us with the nursing perspective. As
a nursing clinical case manager in the emergency department, as well
as a public health nurse, she and those in similar positions are often
the first to see patients who may have been subject to therapeutic fail-
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INTRODUCTION
ure due to prescription drugs. In her piece, Medication Use, Safety,
and Nursing Culture: A View of Potential Counterfeits from the Front
Lines, Ms. Luu notes that although it is the function of the nurse to de-
tect and educate patients about the potential for counterfeit drugs,
nurses and other providers rarely consider counterfeits as a possibility
when patients experience therapeutic failure. This is a critical aware-
ness issue, and requires attention both for the purpose of treating pa-
tients, as well as educating them to the risks of purchases from over
the border, the Internet, and other unreliable markets.
Canada has been the focus of much discussion regarding drug im-
portation. Yet the shrillness of the debate here has muted the perspec-
tives of those on the other side of the border. Tim Gilbert, founder
and partner of Gilbert's LLP, has been extensively involved in the on-
going policy initiatives involving prescription drugs both in Canada,
as well as the United States. With his associate Sana Halwani, they
review and clarify some of the issues in their piece, Confusion and
Contradiction: Untangling Drug Importation and Counterfeit Drugs.
They first note that drugs used in Canada, as well as the United States,
are manufactured around the world, so the term "importation" is as
limited as it is broad. In addition, they point out that most of the prob-
lems surrounding counterfeits are at the manufacturing or wholesale
level, creating alternative issues of detection and protection. They
also note that counterfeit medicines are truly a worldwide problem.
Hence, the question of medicine safety is not, in fact, an importation
issue, but instead a highly difficult, complex problem of international
regulation and harmonization that requires cooperation and technical
savvy. Devising such a system, coupled with necessary enforcement,
can address the international problem of counterfeits.
Of course, many in Canada make a significant living off of selling
drugs through mail order pharmacies, and are scrupulous in their ac-
tivities. These individuals are perhaps being tarred with too broad a
brush when the discussion of importation and counterfeits is raised. In
this vein, the comments of Andy Trozsok, a registered pharmacist in
Canada, and the President of the Canadian International Pharmacy As-
sociation, are instructive. Mr. Trozsok, who has testified in front of
the U.S. Congress on Canadian drug importation, notes that Canada's
regulatory system is as strong as, if not stronger than, the U.S. system,
and mail order activities over the border may be a partial solution to
the high costs of brand name drugs in the United States. He indicates
that those who oppose importation have no evidence, or are self-
interested parties in the debate. Hence, he believes that importation
20051
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Liang,: Introduction
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4 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 36
from Canada into the United States is a viable solution and serves the
public interest here as well.
Although the debate between the provider and Canadian policy
levels are essential to understand, as noted by Tim Gilbert and Sana
Halwani, the key player in the movement and authentication of phar-
maceuticals are the wholesalers in this country. This perspective is of-
ten unheard in the give-and-take debate on this issue. However,
Robert P. Giacalone, both an attorney and a pharmacist for Cardinal
Health, one of the largest wholesaler distributors in the country, pro-
vides this tremendously important perspective in his piece, Drug
Wholesaling and Importation: Challenges and Opportunities?. In this
paper, Mr. Giacalone details the drug distribution supply in the United
States and indicates the practical nature of the limits and benefits of
technological solutions, including a heretofore unpublished evaluation
of radio-frequency identification tags done by Cardinal Health. He
concludes that present regulatory structures and limitations of current
technology cannot support importation at this time, and introduction
of medicines into the U.S. drug supply from foreign non-
manufacturing sources may undermine the integrity of the pharmaceu-
tical supply chain in this country.
Importation is not a new issue. Border importation, particularly
across the United States-Mexico border, has been going on for dec-
ades. Indeed, it has been estimated that Americans buy $800 million
worth of medicines and import them across this border each year.
Professor Marv Shepherd, the Director for Pharmacoeconomic Studies
at the College of Pharmacy of the University of Texas, has been
studying the drug importation phenomenon for years and is the lead-
ing authority in this area. In his paper, Drug Quality, Safety Issues
and Threats of Drug Importation, he notes that drug products are en-
tering the United States from all areas of the world. He observes the
significant problems associated with rogue pharmacy Web sites that
ship any and all sorts of drugs to Americans without a prescription,
the limited information on just who is buying these drugs and who is
servicing them, and the poor quality and quality control associated
with these purchases and sales. On the other hand, he notes that, in
fact, there are some sites that are legitimate and high quality. Yet the
epidemiology of these nontraditional purchases is unknown, including
hospitalization and deaths associated with counterfeit drugs. He con-
cludes that without this information, policymakers cannot make in-
formed decisions about the appropriate means to address the risks of
importation, and hence, drug importation is not a viable alternative at
this juncture.
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INTRODUCTION
Of course, medicines are not the only goods that are counterfeited.
Counterfeiting products has a long and extensive history. James Coo-
per, California Western School of Law Institute Professor of Law and
Assistant Dean of Mission Development, provides us with some of the
context of counterfeiting in his piece, Piracy 101. He notes that there
are significant implications associated with pirated goods; public
health and safety are, of course, impacted, but, echoing others, he
notes the connection between organized crime and terrorist groups and
the counterfeiting and sale of goods around the world. He calls for
coordination of regulatory structures and law enforcement across bor-
ders, and better enforcement of intellectual property protections to
support the relevant domestic and international interests.
The key stakeholder associated with importation-and, of course,
the potential for counterfeit drugs-is the patient. Additionally, pa-
tients must also shoulder the burden for the costs of pharmaceuticals.
Therefore, their voice must be heard in the debate on the appropriate-
ness of drug importation.
Patients who have suffered disease can reasonably be considered
critical representatives of the patient population because they have
lived the phenomenon of disease and its treatment. William P. Bro,
CEO and President of the Kidney Cancer Association, is one such per-
son. He provides his real life insights in his piece, Importation of Pre-
scription Drugs and Risks to Patient Safety. Mr. Bro, a cancer survi-
vor, notes that imported drugs outside the realm of FDA jurisdiction
create risks to patients, particularly with sensitive disease states. The
issues associated with importation, including counterfeits, poor qual-
ity, untested ingredients, as well as unsupervised use, result in risks
too high for the patient at the current time. He concludes that a per-
sonal importation system would create more risks to Americans and
should be scrutinized carefully before implementation.
Another important patient care perspective is provided by Dr.
Rene Rodriguez, President of the Interamerican College of Physicians
& Surgeons, whose patient care base is the underserved Latino popu-
lation. In his piece, Drug Importation and the Hispanic Physician, he,
like Dr. Langston, emphasizes the need for physicians to play a role in
the drug importation debate. Dr. Rodriguez, however, points to an
important concern regarding importation: that the attendant risks asso-
ciated with importation, including counterfeits, will be shouldered by
the poor and the vulnerable patient. These patients would be subject
to the imported "somewhat regulated" drugs, whereas more affluent
patients would be provided with the fully regulated, domestic ver-
sions. Hence, the minority patient with limited income will be re-
2005]
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Liang,: Introduction
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6 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 36
quired to take the risk of imported medicines due to their lack of re-
sources. This is an unacceptable result, particularly as evidence
mounts indicating the disparities in health care outcomes for minority
and underserved poor patients in this country.
Finally, other patient groups, including the American Association
of Retired Persons, do favor importation. In his comments entitled
Prescription Drug Importation Beyond Canada, State Director of
AARP, Michael Moreno, outlines this position. He notes that AARP
has a longstanding interest in ensuring prescription drug coverage for
the vulnerable patient. He describes the activities of AARP to investi-
gate the safety of drug importation from Canada and the important as-
sessment made to make sure Canadian-purchased drugs are safe. He
indicates that the regulatory structure in Canada, plus safety provi-
sions, can result in appropriate and effective importation, such as un-
der the Dorgan-Snowe importation bill currently being considered in
Congress.
Overall, the issue of drug importation is a challenging one. How-
ever, having all stakeholder groups together and memorializing their
thoughts will provide those involved in the policymaking debate es-
sential information about the pros and the cons of this policy choice.
The conference International Drug Importation: Issues in Public Pol-
icy, Patient Safety, and the Public Health and its proceedings will
hopefully provide some important information toward that end.
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Introduction

Over the Virtual and Geographic Borders: Understanding Importation and Counterfeit Drugs

California Western School of Law

Not a member yet

Table of Contents

The H\u27aint in the (School) House: The Interest Convergence Paradigm in State Legislatures and School Finance Reform

Defining Terms in the 1982 Law of the Sea Convention IV: The Last Round of Definitions Proposed by the International Law Association (American Branch) Law of the Sea Committee

Powerful States, Customary Law and the Erosion of Human Rights Through Regional Enforcement

Assessing the Impact in Grutter on the Use of Race in Law School Admissions

Table of Contents

Introduction

Over the Virtual and Geographic Borders: Understanding Importation and Counterfeit Drugs

Confusion and Contradiction: Untangling Drug Importation and Counterfeit Drugs

Unocal and the Demise of Corporate Neutrality

2,052

2,208