The American law generally regards the “bundle of rights” as property’s dominant metaphor. On this conception of property, ownership empowers an individual to control a particular resource in any number of ways. For example, he may use it, transfer it, exclude others from it, divide it, and perhaps even destroy it. The various rights in the bundle, however, are not equal in terms of importance. To the contrary, American courts and commentators have deemed the “right to exclude” foremost among the property rights, with the Supreme Court characterizing it as the “hallmark of a protected property interest” and leading property scholars describing the right as the core, or the essential element, of ownership. Yet for all its centrality, in the minds of courts and legal scholars, there is substantial conceptual confusion about the nature of the “right to exclude.” This confusion manifests itself in the form of inconsistent judicial opinions and unsatisfying commentary on those opinions.

The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider “American” companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for “best practices” bankruptcy codes.

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court’s sole comment on the reporter’s privilege—Branzburg v. Hayes. “The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter,” Judge Sentelle wrote for the three-judge panel of the Circuit Court of Appeals for the District of Columbia.

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held—not to mention the prominence of their forum, the Michigan Law Review—their proposal to create a new “informed choice” cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response.

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met their obligation to warn about the dangers associated with taking the drug. In many instances it is clear that drug companies failed to warn about known dangers or negligently failed to adequately test drugs for dangerous side effects. Even if plaintiffs cannot meet the high burden of proving injury-causation, we contend that plaintiffs should be able to establish a cause of action for the failure of drug companies to provide the requisite information so that plaintiffs could make informed choices as to whether they wanted to expose themselves to the uncertain risk associated with the drug.

President Bush has made homeownership a central element of his housing policy. Through the American Dream Down Payment Act, the Homeowner’s Tax Credit, and the Zero Downpayment Mortgage Initiative, President Bush is attempting to make homeownership easier both by reducing the down payment required and by increasing financing options for the purchase of a home. More Americans owned homes in 2004 than ever before. This increase in homeownership has allowed more families to enjoy the “security, dignity, and independence that comes with owning their piece of the American dream.”

Armed conflict creates the need for humanitarian aid. International law creates the mechanisms by which parties provide humanitarian aid and creates obligations in connection thereto. The 1949 Geneva Conventions (the “Conventions”) form the humanitarian backdrop against which war is waged. The Conventions establish an impartiality standard in that they grant to humanitarian organizations the right of access to non-combatants during armed conflict. In the United States, the International Emergency Economic Powers Act (“IEEPA”) establishes a Presidential determination standard for humanitarian organizations acting in situations of armed conflict that allows the President to restrict and prohibit humanitarian organizations’ activities without considering their impartiality. Current circumstances present the need for immediate impartial humanitarian aid in armed conflicts to which the United States is a party. Contemporaneous use of IEEPA creates an imminent risk of a violation of the Conventions.