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48 Colum. J.L. & Soc. Probs. [i] (2014-2015)

handle is hein.journals/collsp48 and id is 1 raw text is: COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS Volume 48 Number 1 Fall 2014 Copyright © 2014 by the Columbia Journal of Law and Social Problems, Inc. WHAT YOU DON'T KNOW WILL KILL YOU: A FIRST AMENDMENT CHALLENGE TO LETHAL INJECTION SE C R E CY ................................................................................................ 1 The conventional cocktail of drugs used in lethal injection executions has been sodium thiopental, pancuronium bromide, and potassium chloride. However, in 2011, the sole manufacturer of sodium thiopental in the United States, Hospira, Inc., restricted the distribution of the drug to prevent it from being used in executions. In response, states are now experimenting with drugs like pentobarbital, midazolam and hydromorphone in executions. Furthermore, several states have obtained, or intend to obtain, death penalty drugs from compounding pharmacies, entities which have recently come under intense scrutiny for their lack of regulatory oversight and production of sub-standard drugs. The most alarming development, however, is the secrecy that has accompanied lethal injection executions in recent years. For example, some states, like Georgia, have passed statutes that make information about the source of the drugs and the professional qualifications of the lethal injection participants a confidential state secret. Understandably, much discussion about lethal injection drugs and the states' lethal injection protocols is focused on the Eighth Amendment and Due Process consequences for the condemned. This Note, however, analyzes a particular lethal injection secrecy statute under the First Amendment, and concludes that the public has a qualified right of access to information about lethal injection drugs under the First Amendment. BETTER INFORMATION FOR BETTER REGULATION: HOW EXPERIMENTALISM CAN IMPROVE THE GAINFUL EMPLOYM ENT RULE .................................................................... 57 In June 2011, the Department of Education (the Department) promulgated a gainful employment rule, seeking to deny Title IV federal student aid to for- profit education programs whose students struggled to repay loans. The Department wanted to rein in the for-profit higher education industry, which depends heavily on its students' ability to apply for federal funding. In June 2012, a federal court struck down the entire rule on the basis that one of its penalty thresholds was arbitrary and capricious. The regulatory landscape in the case of gainful employment is complex and presents many uncertainties. As such, the current command-and-control model of rulemaking is not suited to crafting a well-tailored, non-arbitrary rule. Instead, the gainful employment rule should follow a legislative or administrative experimentalist approach. Experimentalism is a regulatory framework that encourages regulator and regulated entities to cooperate in the production of data and fine-tuning of complex regulation through constant monitoring. Thus, the Department would establish a default regulatory scheme through the rule, but incorporate a waiver mechanism that would allow greater cooperation between regulator and regulated entities. The Department could thus monitor and learn from the regulated entities in an effort to craft a better rule with penalty thresholds that do not set arbitrary standards for the for-profit schools to meet.

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