Digital Commons Network^™

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

Funeral Protests, Privacy, And The Constitution: What Is Next After Phelps?, Mark Strasser

American University Law Review

In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a military funeral. Although the Court asserted that its holding was narrow and the legal issues involved were straightforward, this Article argues that Phelps ultimately raises more questions than it answers and almost guarantees increased confusion in First Amendment jurisprudence. The Court in Phelps explained that the First Amendment prohibits tort damages when the comments at issue involve matters of public concern, yet failed to explain whether private speech that was juxtaposed with public, …

Long-Term Suspensions And The Right To An Education: An Alternative Approach, Mary Kenyon Sullivan

North Carolina Law Review

No abstract provided.

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy

San Diego Law Review

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson

Michigan Law Review First Impressions

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions …

Antitrust Review Of Accountable Care Organizations: An Assessment Of Ftc And Doj's Relaxed Approach To Regulating Physician-Hospital Networks, Andrew A. Kasper

North Carolina Law Review

No abstract provided.

Pleading And Proving Foreign Law In The Age Of Plausibility Pleading, Roger M. Michalski

Buffalo Law Review

No abstract provided.

Fair Use As A Collective User Right, Haochen Sun

North Carolina Law Review

No abstract provided.

In Defense Of The Ministerial Exception, Christopher C. Lund

North Carolina Law Review

No abstract provided.

Climate Change And The Evolution Of Property Rights, Holly Doremus

UC Irvine Law Review

No abstract provided.

Construction Law, Frank O. Brown Jr.

Mercer Law Review

This Article focuses on a few noteworthy construction law decisions by Georgia appellate courts between June 1, 2010 and May 31, 2011.'

Introduction To The 2011 Editors’ Symposium: The Morality Of Preventive Restriction Of Liberty, Larry Alexander, Steven D. Smith

San Diego Law Review

Restricting the liberty of persons who can be held morally and legally responsible for their conduct on the ground that they might abuse that liberty and commit criminal acts is both suspect and ubiquitous. Laws that restrict the ownership of guns, explosives, and other materials out of fear that those materials will be put to illegal uses are examples of such restrictions. So, too, are restraining orders, no contact orders, and the like. Laws restricting the residency of sex offenders are another example, as are laws permitting increased incarceration on the basis of predictions of dangerousness. Detention of suspected terrorists …

Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak

San Diego Law Review

Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully …

Proposed 2009 Regulations Dealing With § 356 Nonrecognition Rules Should Be Given The Boot, Terri Guinn

San Diego Law Review

"Fire, Aim, Ready!" Could this be the approach taken by the Internal Revenue Service (the Service) in its attempt to finalize regulations, proposed more than two years ago, that would specify a new method for determining a shareholder's taxable gains and losses in certain reorganization transactions? Has the Service decided to elevate theory over practicality without thinking through all of the ramifications of these regulations? Finalizing these proposed regulations in their current form may have serious unintended consequences. As drafted, they miss their intended mark by inadvertently creating a loophole whereby some shareholders could take immediate losses on some of …

The Jurisprudence Of Dignity, Leslie Meltzer Henry

University of Pennsylvania Law Review

No abstract provided.

Constraining Certiorari Using Administrative Law Principles , Kathryn A. Watts

University of Pennsylvania Law Review

No abstract provided.

Exempt Executives - Dollar General Store Managers' Embattled Quest For Overtime Pay Under The Fair Labor Standards Act, Drew Frederick

University of Pennsylvania Law Review

No abstract provided.

Medical Malpractice And Compensation In Global Perspective: How Does The U.S. Do It?, David A. Hyman, Charles Silver

Chicago-Kent Law Review

This article describes the problem of health care error in the United States of America and the various regulatory, liability, and compensation systems that deal with medical mistakes. In terms of frequency, direct costs, and aggregate social costs, the problem of medical errors is staggering. Millions of patients are killed or injured every year. A large percentage of adverse events could be avoided by the use of reasonable care. Regulators have not dealt with these problems effectively. Regulators specifically appointed to police the medical profession are often lax, whether because of capture, or from a sense of "there but for …

Humanitarian Law Project And The Supreme Court's Construction Of Terrorism, Wadie E. Said

BYU Law Review

No abstract provided.

State Mandated Disability Insurance As Salve To The Consumer Bankruptcy Imbroglio, Alena Allen

BYU Law Review

From Main Street to Wall Street, Americans are hurting. In 2009, over 1.4 million families filed for bankruptcy. Researchers examining the causes of bankruptcy discovered that as many as sixty-two percent of all bankruptcies were precipitated by a medical crisis. Because many Americans are living paycheck to paycheck and lack disability insurance, when a medical crisis strikes, bank accounts are quickly depleted by the amalgam of high medical bills and lost wages. Disability insurance provides needed wage replacement when a worker is unable to work due to an illness or injury. This Article presents the case for statemandated disability insurance …

Defined (Yet Uncertain) Benefit Pension Plans In America, Travis Bayer

Chicago-Kent Law Review

Despite playing a central role in many public and private employees' retirements, defined benefit pension plans are woefully underfunded. Moreover, the combination of a Baby Boomer retirement bulge and a struggling economy are putting even more pressure on defined benefit plans. This Note examines relevant background information regarding defined benefit pension plans and demographic data of the Baby Boomer generation. This Note then explores how and to what extent states and private employers have created contractual obligations through defined benefit plans and addresses what happens when those contractual obligations are breached. Finally, this Note suggests that litigation cannot provide a …

Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe

San Diego Law Review

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are …

Subsidizing Fat: How The 2012 Farm Bill Can Address America's Obesity Epidemic, Julie Foster

University of Pennsylvania Law Review

No abstract provided.

No Vacancy: Why Congress Can Regulate Senate Vacancy-Filling Elections Without Amending (Or Offending) The Constitution, Zachary M. Ista

American University Law Review

There currently exists no uniform method for filling vacancies in the United States Senate, leaving the states to create and implement their own vacancy-filling procedures. As a result of recent problems under this system, such as ex-Governor Rod Blagojevich’s notorious scandal in Illinois, some in Congress have suggested a standardized method for filling Senate vacancies. However, an apparent constitutional conflict between the Elections Clause and the Seventeenth Amendment’s vacancy-filling clause presents the question of whether such standardization could be accomplished with federal legislation, or whether it would require amending the Constitution. Applying the textual, structural, and historical approaches of constitutional …

A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen

San Diego Law Review

This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it …

Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse

San Diego Law Review

This Article begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use of post-insanity acquittal involuntary commitment. This Part also considers whether disease …

Public Corruption Concerns And Counter-Majoritarian Democracy Definition In Citizens United V. Federal Election Commission, Daaron Kimmel

Chicago-Kent Law Review

In determining the shape of the free speech rights and anti-corruption concerns that courts must balance in campaign finance cases, judges are influenced by their own underlying understandings of what an ideal democracy should look like. For judges to decide whether the government is appropriately regulating the political process, the rules that allow all citizens to interact with and shape their democracy, judges must first decide what that democracy ought to look like. This affords judges a great deal of discretion in campaign finance cases. Citizens United v. Federal Election Commission is a particularly bold judicial attempt to reshape the …

Another Competitive Enterprise: A Balanced Private-Public Solution To North Carolina's Forensic Science Problem, Kavita Pillai

North Carolina Law Review

No abstract provided.

What Is Securities Fraud?, Samuel W. Buell

Duke Law Journal

As Rule 10b-5 approaches the age of seventy, deep familiarity with this supremely potent and consequential provision of American administrative law has obscured its lack of clear conceptual content. The rule, as written, interpreted, and enforced, is missing a fully developed connection to—of all things—fraud. Fraud is difficult to define. Several approaches are plausible. But the law of securities fraud, and much of the commentary about that body of law, has neither attempted such a definition nor acknowledged its necessity to the coherence and effectiveness of the doctrine.

Securities fraud’s lack of mooring in a fully developed concept of fraud …