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Abstract:
Each year, the National Basketball Association (NBA) conducts its annual entry draft (NBA Draft), which is the exclusive process by which premiere amateur players gain entrance into the NBA. To the dismay of many commentators, a number of drafted players will have just completed their senior year of high school. Routinely, these players are dismissed as immature, unprepared, and ill-advised, even though most will sign guaranteed, multi-million dollar contracts before their college educations would have begun.

In stark contrast to popular myth, this Article finds that players drafted straight out of high school are not only likely to do well in the NBA, but are likely to become better players than any other age group entering the league. In fact, on average, these players perform better in every major statistical category than does the average NBA player or the average NBA player of any age cohort. Beyond excellence in performance, high school players can also earn substantially more over the course of their NBA careers, largely due to the brief, but steep career earnings-curve of professional basketball players, as well as collectively-bargained labor conditions concerning free agency. Strikingly, players who bypass college may earn as much as $100 million more over the course of their careers than had they earned a college diploma.

These results may appear surprising and even unpopular, but they only represent predictable outcomes of the NBA's economic system, which, perhaps unintentionally, provides unambiguous incentives for premiere high school players to seek entrance into the NBA as soon as possible. In turn, since those players are often the most talented, they tend to develop at a uniquely accelerated rate, and thus their earlier arrival and longer stay ultimately benefits the NBA. At the same time, those high school players better off attending college tend to do so because of contrasting incentives generated by this same economic system. In short, high school players have proven to be the best group of players entering the NBA because the NBA's economic system dictates that very outcome.

Despite the systematically-predictable success of high school players in the NBA, league executives and myriad social commentators desire to ban them. As a result, this Article explores whether federal labor law and antitrust law might preclude the NBA from imposing such a ban. Related discussion analyzes the two most likely forms of employment preclusion: a collectively bargained ban or a unilaterally imposed ban

First, should the NBA and the National Basketball Players' Association (NBPA) agree to a provision banning high school players from the NBA Draft, a court may defer to their collective bargaining, even though high school players would not have had a seat at the negotiating table when such a rule was created. Although the NBA and the NBPA have flirted with such negotiations in the past, this scenario seems unlikely, in part due to the specter of litigation, and in part due to likely allegations of hypocrisy levied against the NBPA, which, historically, has unequivocally opposed such a rule. Moreover, pending the final outcome of former Ohio State football player Maurice Clarett's lawsuit against the National Football League (NFL) and its age prohibition, the mere ability of the NBA and NBPA - and any professional sports league and players' association - to construct such a rule would be cast in doubt.

Even if the NFL defeats Clarett in court, and the NBPA were to accept a ban on high school players during the next collective bargaining negotiation, a group of sympathetic and, more importantly, influential NBPA members could seek to decertify the union. Decertification would require a majority vote of NBPA members. Provided a majority of NBPA members agree to decertify, the NBPA would lose its collective bargaining power, thus rendering the ban ineffectual.

Should the NBA unilaterally impose the ban, however, the analysis turns to antitrust law. Despite recent judicial trends to apply the flexible rule of reason analysis to group boycotts, courts have remained generally consistent in applying the more stringent per se analysis to boycotts where the boycotting group serves as the only option for potential buyers or sellers. In the context of the NBA, high school players, like all potential draft picks, are the sellers since they are selling their talents to NBA teams, the buyers. Because there is no substitute equivalence to the NBA, boycotted players would not be able to secure comparable employment. In this scenario, therefore, high school players would have an excellent opportunity to characterize the ban as a group boycott.

A less predictable scenario would occur if a court employs rule of reason analysis or quasi-rule of reason analysis. In those instances, a judicial balancing of procompetitive and anticompetitive effects would weigh a number of factors, including how a ban fails to provide procedural safeguards, how the NBA dominates global basketball, and how high school players comprise only 4 percent of all NBA players. Because antitrust law has generally been confined to instances where large segments of buyers or sellers have been boycotted, the dearth of high school players may prove significant. On the other hand, a blanket prohibition on high school players would fail to provide procedural safeguards, thus potentially animating a court to find it in violation of antitrust law.

Abstract:
This essay examines age eligibility rules in the National Football League (NFL) and the National Basketball Association (NBA), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high school graduation. The same is true of those who enlist in the U.S. armed forces and in various occupations that require maturity and discipline. Such an employment landscape raises inquiry as to why NFL and NBA teams, unlike so many other employers, would agree to boycott any candidate, regardless of talent or skill, until a prescribed period after high school graduation. This inquiry enjoys heightened interest when considering that NFL and NBA teams are incomparable employers, as players may not play in other leagues for similar compensation.

Abstract:
This Article examines required genetic testing of NBA players from a situational vantage point, integrating socio-psychological, legal, and ethical analyses. The core argument may be expressed as follows: required genetic testing of NBA players appears consistent with a broader and largely deleterious agenda by the NBA to control players. Since implementation of the rookie wage scale in 1995 through the recent imposition of a paternalistic player dress code, the NBA has increasingly usurped player autonomy. The NBA's capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of unappreciated cognitive biases, fans and media often embrace distorted views of player's maturity, arrest propensity, and collegiate experiences. As a result, NBA players tend to be wrongly identified as immature, out-of-control, and hopelessly uneducated. In turn, the NBA has designed policies that ostensibly remedy these feigned problems while less-detectably transferring autonomy from player to league. In short, the league sees that others often fail to see, and that enables it to surreptitiously control players.

Abstract:
Professional athletes are often regarded as selfish, greedy, and out-of-touch with regular people. They hire agents who are vilified for negotiating employment contracts that occasionally yield compensation in excess of national gross domestic products. Professional athletes are thus commonly assumed to most value economic remuneration, rather than the love of the game or some other intangible, romanticized inclination.

Lending credibility to this intuition is the rational actor model, a law and economic precept which presupposes that when individuals are presented with a set of choices, they rationally weigh costs and benefits, and select the course of action that maximizes their wealth, happiness, or satisfaction. Since athletes are generally presumed to most value financial compensation, they simply behave rationally by selecting the most lucrative offer.

Intriguingly, however, for every apparent athletic mercenary, there appear to be many who significantly discount financial compensation. Indeed, for a variety of expressed motivations, professional athletes regularly select the non-optimal contract offer, at least in a traditional sense of optimality. Risk aversion and other deliberative strategies occasionally provide explanation, but more often explanatory is value in intangibles, such as loyalty, regional affinity, weather preferences, familiarity with certain teammates or coaches, prospects for team success, and demographic traits.

A law and economic explanation for such behavior would illuminate the ranking of alternative preferences, and then, as reflected by choice, a maximization of such ranking. Put differently, by accepting a less remunerative offer, professional athletes may consciously substitute subjective value for objective value, and their choice simply reflects that which makes them most happy.

Though diagrammatic in many instances, preferences may not universally explain decision-making among professional athletes. Indeed, like all individuals, professional athletes appear vulnerable to cognitive biases, which are subconscious mental errors triggered by simplified informational processes, and heuristics, which are convenient, if unfinished predictive cues. Though cognitive biases and heuristics enable individuals to manage a complex array of stimuli, they often distort preferences and adversely affect decision-making. For instance, because of confirmation bias, individuals are subject to ignore or discount information that challenges existing beliefs. Alternatively, optimism bias leads individuals to assume that general risks do not apply with equal force to themselves.

In the context of professional sports, these and other cognitive distortions may impair not only the pursuit of objective value, but also rational assessment of subjective value. This is especially true when teams adroitly manipulate distortions, such as impressing illusory variances among themselves and other teams. Accordingly, when accepting a less remunerative offer, professional athletes may have unknowingly misinterpreted their preferences and rankings.

To date, no published analysis has addressed the potential influence of behavioral tendencies on professional athletes in contemplation of contract offers. Perhaps this is not surprising, given the relative paucity of professional athletes among the general population, their presumptively unique modes of employment, and a general aversion among academics for the study of sports. A more scrupulous assessment of professional athletes, however, suggests a uniquely desirable group for examination. Indeed, aside from their striking influence on the world and economy around them, professional athletes, unlike most groups commonly studied by academics, furnish published commentary of their thought processes, typically through newspaper, television, and radio interviews. Accordingly, professional athletes offer a wealth of narration as to their values, beliefs, and priorities, and, equally important, such narration occurs in real world settings, rather than in experimental circumstances. Along those lines, by evading the alleged experimental flaw of many behavioral law and economic studies, analysis of decision-making among professional athletes may prove extraordinarily salient in the broader discussion of behavioral sciences and their influence on traditional law and economics.

In pursuit of the above phenomena, this Article will begin by exploring the rational actor model, and how individuals utilize preferences in determining their optimal choice. This Article will then discuss limitations to the rational actor model, namely the role of cognitive biases and heuristics. Thereafter, this Article will canvass decision-making among professional athletes in contemplation of contract offers. In that regard, this Article will examine why some professional athletes pursue the most lucrative offer, while others do not, and to what extent cognitive biases and heuristics influence their decision-making. This Article will conclude by highlighting implications for professional sports and proposing recommendations for further analysis by economists, psychologists, and legal academics.

Abstract:
As more Americans consume fast food each year, more Americans are contracting serious diseases related to obesity. Considering that obesity ranks second behind tobacco use as the largest contributor to mortality rates in the United States, and also that it gives rise to greater publicly funded health care expenses than does tobacco, this phenomenon begs the obvious question: To what extent does the growing consumption of fast food contribute to the obesity epidemic and the incidence of disease? If the answer indicates a meaningful contribution, a natural follow-up question then emerges: In a sensible legal system, what instruments would best ameliorate its effects?

In attempting to answer these questions, this Article explores obesity as an economic occurrence, and how varying legal remedies may curtail its deleterious effects on the American economy. In doing so, this Article surveys the proportional causes of obesity, and it identifies fast food consumption as an essential element. In accordance with that finding, this Article ponders whether an absence of nutritional labeling has precipitated overconsumption, and how the law may be optimally utilized to minimize associated inefficiencies.

Specifically, Part I appraises the primary determinants of obesity in the United States, as well as whether Americans knowingly contribute to their corpulence. This is an essential examination, since obesity has morphed into a material public expense, with taxpayers now bearing approximately half of the cost of the nation's girth. Through this analysis, Part I confirms the predictable: Most Americans already know that fast food consumption may impair their health. Yet, more engagingly, it also reveals that Americans often underestimate the extent of that impairment, in part because they tend to discount the negative contents of restaurant food. Accordingly, many Americans internalize a degree of risk less significant than the actual risk present, thus rendering their food decision-making process systematically optimistic. This is particularly evident among children, who prove uniquely sanguine.

Part II then scrutinizes federal governmental choices when imposing food labeling requirements, as well as the extent of regulatory authority that has been delegated to the Food & Drug Administration (FDA). Significantly, the federal government has exempted all restaurants from food labeling requirements. The merits of such a privilege bear query, since any exemption from product labeling presumes that consumers engage in a rational assessment of associated risks.

As explored in Part III, however, other relevant actors, such as the State of New York, have concluded otherwise, specifically that consumers often fail to engage in such rational assessment. While adhering to the confines of the federal labeling exemption, these actors have consummated voluntary agreements with fast food companies in hopes of efficiently engineering market incentives for nutritional disclosure. Similarly, certain industry participants, by offering healthy dishes, may implicitly signal the less nourishing content of their regular dishes. Thus, in order to fully evaluate the efficacy of the labeling exemption, the supplemental value of these existing and voluntary market influences must also be considered.

Part IV turns to the emerging, though largely quixotic, judicial remedies for Americans who have contracted obesity-related diseases, allegedly due to fast food consumption. Though such lawsuits have been dismissed as trivial by most commentators, they present an excellent vehicle for examining the comparative merits of prospective regulation and retrospective litigation. That is, they suggest something of a recurring miss: A discrete group of individuals appears uniquely inclined to overconsume fast food, thus intimating a traditional common law duty on the part of fast food companies to warn; yet, for purposes of establishing legal causation, identifying and quantifying the proportional causes for any one person's obesity and obesity-related disease proves exceedingly difficult, if not impossible. Thus, such lawsuits continuously fail to satisfy the requisite contours of a tort claim, even though they raise meritorious concerns for social scientists and policy makers alike.

By applying consumer choice theory to fast food consumption, Part V proposes a new theoretical framework that could both conceive a limited common law duty to warn of the dangers of overconsumption and, by immunizing a food seller from tort liability, reward compliance with such a duty. Specifically, this Article postulates revision of the Nutrition Labeling and Education Act of 1990 (NLEA) to require the divulgence of nutritional information for all fast food items marketed for childhood consumption. In this narrowly tailored setting, the food decision-making process appears both uniquely optimistic and capable of correction, as parents often dictate or significantly influence the food consumption of their children. In that particular decision-making process, parents internalize an anomalously high value in nutrition and diminished tolerance of risk. Moreover, the imposition of a targeted nutritional labeling requirement would prove strikingly less onerous than more regressive and costly measures, such as an obesity tax or a fast food tax. In short, this form of nutritional labeling would prove uniquely efficacious. Accordingly, regulatory and judicial alternatives may be combined to most efficiently curtail the effects of fast food overconsumption on public health and tax-funded expenditures, while simultaneously removing from the American tort system a legally implausible, though factually credible, claim.

Abstract:
This Article calls for a situationist approach to teaching law, particularly tort law.

This new approach would begin by rejecting the dominant, common-sense account of human behavior (sometimes called dispositionism) and replacing it with the more accurate account being revealed by the social sciences, such as social psychology, social cognition, cognitive neuroscience, and other mind sciences.

At its core, situationism is occupied with identifying and bridging the gap between what actually moves us, on one hand, and what we imagine moves us, on the other. Recognizing that gap is critical for understanding what roles tort law (among other areas of law) serves. Beyond that, a situationist approach helps to make clear the subconscious tendencies and otherwise unappreciated external forces that have shaped tort law and tort reforms. A situationist perspective on tort law, this Article argues, also has significant implications for how tort law is taught.

The Langdellian model of teaching, which has monopolized the law school classroom since the late 19th century, has been the brunt of increasing criticism over the past several decades. Most critics emphasize that the casebook method forces the round complexities of law, lawmaking, and human behavior into the square holes of antiquated legal categories and idiosyncratic appellate decisions. A number of leading law schools are now dramatically reshaping their curricula to address such concerns.

Simultaneously, legal theory is in the midst of its own revolution as legal scholars are beginning to reject the hard-core dispositionism at the foundation of law and to incorporate, or at least acknowledge, emerging insights from the mind sciences.

The curricular and theoretical renovations underway represent what we would call a turn toward the situationist. Those trends have created a hospitable climate for the emergence of a more robust situationist approach to law and law teaching. This Article describes not only those trends and their implications, but also some specifics regarding how situationist torts would be taught and what a situationist torts casebook would look like.

Abstract:
This Feature will explore American Needle, Inc. v. NFL and its potential impact on professional sports in the United States. In August 2008, the United States Court of Appeals for the Seventh Circuit held that the National Football League (NFL) and its teams operate as a “single entity” for purposes of apparel sales. Because a single entity cannot conspire with itself, it cannot violate Section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade. The U.S. Supreme Court recently granted a writ of certiorari and will review American Needle in its 2009-2010 Term.

As this Feature will detail, American Needle presents the most meaningful sports law controversy in recent memory. For the first time, a U.S. court of appeals has expressly recognized that in certain settings of collusive behavior, a professional sports league and its independently owned franchises may function as a single entity. American Needle offers the Supreme Court an opportunity to settle a longstanding source of confusion: how should antitrust law regulate the peculiar, perhaps incomparable, business entity known as a professional sports league?

The stakes could not be higher. If the Supreme Court agrees with the Seventh Circuit or, as the NFL hopes, furnishes an even more sweeping recognition of single entity status, professional sports leagues could be shielded from Section 1 in a bevy of decision-making contexts that have traditionally been subject to Section 1 scrutiny. Particularly when compared to their past treatment, leagues could become uniquely sovereign and commanding.

This Feature will begin by describing the litigants in American Needle and the underlying relationship between antitrust law and the NFL. The Feature will then turn to a substantive analysis of American Needle and its implications for the NFL and other organized associations of sports, including the National Basketball Association (NBA), Major League Baseball (MLB), and the National Collegiate Athletic Association (NCAA). Single entity recognition may benefit these organizations when they negotiate television contracts, restrain players’ salaries and employment autonomy, and execute exclusive contracts with sponsors and licensees, among other pursuits traditionally subject to Section 1 scrutiny. This Feature will conclude with a recommendation that the Court reject the NFL’s single entity defense on the grounds that it would belie legal precedent and mistakenly characterize league operations. The recommendation, however, will leave open the door for leagues to pursue, and for Congress to consider, targeted exemptions from Section 1.

American Needle v. NFL1, Sherman Act, National Football League, American Needle, Seventh Circuit

Abstract:
This paper examines the law and social psychology of the "Wonderlic Personnel Test" ("the Wonderlic") administered to prospective National Football League ("NFL") players. It specifically examines whether "stereotype threat" is apparent among players taking the Wonderlic, and the potential legal implications of such a finding.

Stereotype threat reflects the behavioral effects that result from an individual's belief and fear that his actions will confirm a negative stereotype of a group to which he belongs. Stereotype threat typically manifests in anxiety, which can impair performance and trigger a self-fulfilling prophecy: because of stress related to his or her group membership, the person underperforms, thereby unintentionally corroborating the underlying group stereotype.

With recent empirical data indicating that the Wonderlic is not predictive of NFL performance, the potential presence of stereotype threat among football players taking the Wonderlic invites a wide-range of legal and social questions.

Abstract:
This essay examines two of Judge Sotomayor’s most notable opinions, Silverman v. Major League Baseball Player Relations Committee and Clarett v. National Football League. It also explores how Judge Sotomayor’s opinions and judicial philosophy may impact two emerging sports law disputes: whether a player could successfully challenge the NBA's eligibility rule, which since 2006 has required that U.S. players be at least 19-years old and one year removed from high school, and whether, in certain settings of collusive behavior, leagues and their independently-owned franchises may function as a single entity.

Judge Sonia Sotomayor, antitrust, labor law, NBA age limit, NFL age limit, Major League Baseball

Abstract:
This article explores four theoretical approaches to the nutritional labeling of fast food items: 1) The Voluntary Agreement Model; 2) The Free Market/Light Menu Model; 3) The Litigation Model; and 4) The Legislative Model. These models are explored in the context of the increasing frequency at which Americans consume fast food, the surging percentage of Americans who are overweight, and the recognition that more than half of all obesity-related costs are borne by taxpayers and employers. Related analysis also pertains to an application of Consumer Choice Theory to food choice. After concluding that the first three models are likely deficient in redressing related concerns, this article recommends that fast food restaurants generate full nutritional disclosure for items aimed at children 14 and under; that such disclosure replicate the format established by the Nutrition Labeling and Education Act; and that it be available at the point-of-sale.

Abstract:
This Article will ponder the role of situational pressures, fundamental attribution errors, and legal frameworks in how professional sports actors respond to the threat and occurrence of calamities. Both natural and manmade threats to American health are likely to rise over the next decade. Such threats may include catastrophic weather, natural disasters, terrorist attacks, and communicable disease pandemics. In response to these threats, professional sports leagues, professional athletes, fans, and media might engage in unprecedented behavior.

Consider, for instance, increasingly-devastating weather patterns, and how they might animate leagues to relocate franchises to cities with more favorable forecasts. The same outcome might arise in the wake of a natural disaster or a terrorist attack. Similarly worrisome, a contagious-disease outbreak abroad might lead to scouting and signing restrictions on foreign players. Closer to home, a disease pandemic or a terrorist attack on a pro sporting event might trigger an indefinite cessation of operations.

Professional athletes appear likewise vulnerable to league-transformative responses. For instance, persistent weather effects in the Gulf States might devalue opportunities to play for teams in New Orleans, Tampa Bay, and Miami. Such an effect may already be evident: the National Football League and National Football Players' Association are contemplating economic incentives that would facilitate the New Orleans Saints' assuagement of players reluctant to live in a post-Katrina New Orleans. Incidental and deleterious effects, such as the development of property stigma and the exacerbation of racial or cultural tensions, only intensify situational reluctance. Similar, yet amplified phenomena might arise should terrorist attacks diminish the appeal of playing in targeted cities. The same might be said in the wake of a disease pandemic: players may refuse to travel or protest to play with persons from certain geographies and cultures.

Fans and media are, of course, just as likely to alter their behavior in response to the threat and occurrence of calamities. Most obviously, they may resist attending games should they perceive a sufficient possibility of harm, a phenomenon evidenced during the outbreak of Severe Acute Respiratory Syndrome in 2003. On the other hand, they appear strikingly willing to endure catastrophic weather and natural disasters in order to attend games. Furthermore, they are generally tolerable of intrusive and delaying antiterrorism impositions, such as “pat-downs” and meddling screenings.

Studying the behavior of professional sports actors invites inquiry into the potential effects of judgment errors. Social psychologists and a growing number of legal academics have identified the prevalence of cognitive biases and heuristics in human thinking. Cognitive biases and heuristics are “mental shortcuts” that enable individuals to manage a complex array of stimuli, yet they often distort decision-making in unappreciated ways. Cognitive biases and heuristics comprise part of a broader defect in human perception known as the fundamental attribution error, or tendency to attribute a causal role to easily-observable yet minimally-influential occurrences, while simultaneously failing to appreciate highly-influential defects in thinking. As a result of the fundamental attribution error, situational happenings — especially those that are dramatically obvious, such as startling weather events, horrific terrorist attacks, and contagious diseases — can meaningfully influence attitudes, memories, cognitions, emotions, and behaviors in unperceived ways.

These phenomena beg an obvious question for legal scholars: Can the law be used to mollify the cognitive distortions and situational influences affecting professional sports actors, and can it direct them towards socially-preferred behavior? For instance, can cities employ stadium agreements to prevent weather-weary team owners from hastily relocating their franchises? Can players be contractually-enticed to ignore or discount situational reservations? Can players of foreign nationality contest heightened, possibly xenophobic restrictions on their employment? Can fans contest invasive searches of their body upon entering stadiums? Can media refuse to attend games without jeopardizing their employment?

Broader implications of the same phenomena are even more engaging. Namely, in light of the diversity of American sports, might we consider the behavior of professional sports actors in crisis a bellwether for American behavior in crisis? That is, might a radical change in professional sports operations reflect a radical change in American attitudes and beliefs?

With these questions in mind, this Article will examine external threats to American sports, related situational influences, and past and potential behavioral responses. It will also explore legal safeguards to potentially-deleterious behavioral responses, and conclude with general thoughts on professional sports as a proxy for American self-conception.

Abstract:
There exists increasing concern that the Dietary Supplements Health and Education Act (“DSHEA”) has proven ineffective. Much of the concern regards the disparity in legislative treatment between dietary supplements, foods, and pharmaceutical drugs. Namely, while pharmaceutical drugs must undergo years of costly pre-market testing, most supplements, like foods, can immediately enter the market, and only after repeated instances of adverse reactions can the Food and Drug Administration (“FDA”) remove them. Such a framework appears to belie both consumer expectations and marketing strategies, as supplements tend to be most perceived for their apparent medicinal qualities. This philosophy of waiting for a foreseeable harm also strikes many as unnecessary, inefficient, and immoral.

On the other hand, most supplements have proven safe and either benign or reasonably effective. Moreover, before policy-makers mandate extensive pre-market testing of all supplements, consider the likely effect on production: a certain percentage of supplement makers will find the economics of production too costly and will thus leave the market. Granted, foreign markets for supplements might still provide the requisite incentives for production, but a more costly entrance fee into the U.S. market would clearly deter some level of production and convince a number of makers to leave the market altogether. Equally troubling, companies which choose to remain in the market would presumably pass on a portion of the increased costs to consumers, who often bear the costs of heightened regulation. Consequently, many beneficial supplements would be priced out of the reach of consumers who either have become users of those products or could become users.

The issue then is one of nuance. Rather than sweeping regulatory intervention, perhaps more carefully-tailored alterations would prove most desirable. This philosophy appears desirable given informational deficiencies among dietary supplement consumers, particularly those with exploitable cognitive biases. Promisingly, such deficiencies may be ameliorated through low-cost measures that promote enhanced communication of product characteristics.

For these reasons, this Article proposes a refined approach to dietary supplement labeling that would legally distinguish them on the basis of potential risk and anticipated benefit. Indeed, the existing legal construct of the phrase dietary supplements is both curious and overly simplistic. It includes minerals, vitamins, herbs, botanical extracts, and amino acids - items that are not only functionally different, but which present radically different risks and benefits. Along those lines, the very consumers of supplements should be more carefully distinguished.

How might such a revised communicatory model work without precipitating material price increases or deterring beneficial production? One method would entail more carefully-contemplated labeling requirements. Such requirements should enhance consumer risk-assessment and reward reputable supplement manufacturers. To accomplish these goals, labels should reveal potential interactions with pharmaceutical drugs and other supplements, warnings of over-usage, predictable distinctions between health claims and structure/function claims, and a recommended intake range based on age and gender, among other personal characteristics. Of similar benefit would be assured ingredient content, as well as greater coordination between the FDA and the Federal Trade Commission (FTC) in regulating false or misleading supplement claims. Importantly, because such labeling requirements would impose only minimal cost increases to manufacturers.

A second method would require supplement manufacturers to register ingredient contents with the FDA and to report adverse reactions. These two concepts are related in practice and in form to enhanced labeling disclosure and would remedy a framework whereby the FDA fails to learn of over 99 percent of adverse consumer reactions. Such requirements would appear consistent with efficient modeling, particularly given the FDA's limited resources; for the FDA to pursue information already possessed by manufacturers appears wasteful and unnecessary. In addition to providing consumers with more timely and crucial information, such requirements would enhance lines of communication between the FDA and manufacturers, as industry and governmental actors would share product information. This in turn would enhance the reliability of adverse event reporting and offer promise for greater industry-governmental relations. Moreover, like enhanced labeling, registration and reporting are low-cost, informational directives that preserve the production incentives and pricing schemes of supplement manufacturers.

Imposing such informational duties would thus enhance consumer information, as well as the level of informed risk and assessable benefit. Moreover, by avoiding incentive-altering regulation, production incentives would remain intact, particularly for those who sell verifiable products. Prices for such products should also remain within reach of current and future clientele. In addition, by calibrating supplement information, consumer confidence in the much-maligned dietary supplement industry should rise, thus offering a corresponding benefit to manufacturers. Better informed consumers and more legitimized products would also supply manufacturers with additional protection from product liability claims.

In exploring these ideas, this Article will canvass the dietary supplement industry and explore how cognitive biases affect supplement consumers. This Article will also examine the salience of legislative choice in promulgating dietary supplement laws. In doing so, this Article will compare American and European models of consumerism in the dietary supplements context. Lastly, this Article will examine the prescription of new informational duties for supplement manufacturers and how such duties might enhance consumer choice without deterring production.

Abstract:
This chapter will examine the connection between social psychology and the larger topic of race, sports, and the law. It will begin by discussing human attitudes and cognitive biases and then turn to what could be the most clearly detectable, or at least the most controversial, connection between social psychology, race, and sports law: the alleged nexus between implicit attitudes and patterns of referees and umpires when officiating games. In particular, the chapter will discuss recent research on the supposed propensity of National Basketball Association ('NBA') referees to call fouls on African-American players with greater frequency than objective data would predict. The chapter will also consider new research on Major League Baseball ('MLB') umpires and a possible relationship between pitchers’ race and umpires’ called balls and strikes. It will then raise the possibility that the Wonderlic Personal Test ('Wonderlic' or 'Wonderlic Test') for the National Football League ('NFL') Draft and similar tests may corroborate findings on stereotype threat. The chapter will conclude by noting the importance of law and collective-bargaining in rectifying related concerns.

social psychology, race sports law, National Basketball Association, Major League Baseball, National Football League, Wonderlic Personal Test

Abstract:
This article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascent form of communication. Significantly, courts have yet to indicate when the physician-patient relationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waiting for judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondence as a valuable means of communication, and a tool for improving the quality of health care as well.

Abstract:
The current winner-take-all or first-past-the-post system of voting promotes an inefficient market where votes are often wasted. In this system, representatives are selected from a single district in which the candidate with the plurality of votes gains victory. Candidates who appear non-generic can rarely, if ever, expect to receive the most votes in this system.

This phenomenon is especially apparent when African-Americans and other minority groups seek elected office. In part because white voters constitute at least a plurality of voters in every state except Hawaii, minorities in the forty-nine other states have had historically little success in gaining election to the United States Senate. As a consequence, the only real opportunity for minorities to gain access to federal elected office remains limited to the United States House of Representatives.

The flaws of the winner-take-all-system and single member district are readily apparent. First, significant blocs of voters are consistently denied the right to elect a truly preferred candidate, because such candidates can almost never expect to receive the most votes. Consequently, many potential candidates are deterred from running because the prospect for victory is so slim. As a result, large numbers of voters are often forced to select the candidate they believe has the greatest chance of winning, rather than their preferred candidate.

In addition, many voters in a winner-take-all system are represented by persons they did not support. For instance, in 1994, while Democratic candidates for Iowa's five seats in the United States House of Representatives received 42% of the total votes cast in Iowa, none of Iowa's five congressional seats was won by a Democrat. Similarly, in 1992, Republican congressional candidates garnered 48% of the two-party statewide vote in North Carolina, but won only four of twelve seats. Thus, many losing votes may be considered wasted.

Wasted votes may also include those cast for the victorious candidate: any vote cast in addition to the number needed for victory might as well have never been cast. Thus, in landslide races, where the prospect of wasting one's vote is high, the incentive to vote seems almost non-existent. Since over 75 percent of congressional races in any given election tend to be landslide races, many eligible voters do not vote.

This Article considers an alternative system of voting: proportional representation, of which there are two basic forms,List System and Choice Voting/Single Transferable Vote.

In the list system, a voter simply selects one party and its slate of candidates. Thereafter, the seats are allocated on the basis of the share of votes each party earned. For instance, in the Iowa congressional example discussed above, instead of receiving zero congressional seats with 42% of the statewide vote, the state Democratic Party would have earned two seats out of the available five. Often, with the list system, a minimum share of votes (such as 5%) is required for a party to earn representation.

Alternatively, in a choice voting system, a voter simply ranks candidates in order of preference (first choice, second choice, etc.). Once a voter's first choice is elected or eliminated, the voter's excess votes are transferred to subsequent preferred candidates until all the seats are filled.

In either arrangement, proportional representation would diminish wasted votes, provide greater opportunities for minority groups to gain access to legislative positions, and offer greater incentive for eligible voters to vote. Though proportional representation risks the election of fringe groups (such as hate groups), a minimum bar of 5% to 7% would likely neutralize that possibility. All told, proportional representation appears to be an intriguing alternative to our present winner-take-all voting system.