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Judicial Disqualification: Federal-State Distinctions, Jeffrey W. Stempel Mar 2019

Judicial Disqualification: Federal-State Distinctions, Jeffrey W. Stempel

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Federal and state law regarding disqualification (aka recusal) of judges is both similar and different, requiring that counsel be aware of federal and state statutes, the Nevada Code of Judicial Conduct and even constitutional considerations.


Weaponized Racial Fear, Shawn E. Fields Jan 2019

Weaponized Racial Fear, Shawn E. Fields

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...this Article contributes to the existing literature by examining (1) why this particular form of "weaponized racial fear" is occurring with increasing frequency, (2) what impacts police response to frivolous complaints have on the individuals and communities most targeted, (3) how legislatures and courts acquiesce to such behavior, and (4) how modest changes to existing law and police department policies can limit the impact of this weaponization.


The Hearsay And Confrontation Clause Problems Caused By Admitting What A Non-Testifying Interpreter Said The Criminal Defendant Said, Zachary C. Bolitho Jan 2019

The Hearsay And Confrontation Clause Problems Caused By Admitting What A Non-Testifying Interpreter Said The Criminal Defendant Said, Zachary C. Bolitho

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This Article proceeds in four parts. Part I provides an in-depth discussion of the hearsay problem raised by admitting statements made by a non-testifying interpreter. It explores the historical treatment of the problem and discusses the development of the agency and language conduit theories. Additionally, Part I highlights the flaws with both theories—the language conduit theory is based on a false premise regarding the task of interpreting, and the agency theory contradicts well settled principles of agency law.

Part II discusses the Confrontation Clause issue by describing the current state of the law and arguing that the Sixth Amendment ...


Bias In, Bias Out, Sandra G. Mayson Jan 2019

Bias In, Bias Out, Sandra G. Mayson

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Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment ...


Was Yosef On The Spectrum? Understanding Joseph Through Torah, Midrash, And Classical Jewish Sources (Introduction), Samuel J. Levine Jan 2019

Was Yosef On The Spectrum? Understanding Joseph Through Torah, Midrash, And Classical Jewish Sources (Introduction), Samuel J. Levine

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The story of Yosef (Joseph) presents some of the most challenging questions of all biblical narratives. Yosef’s behavior, interpersonal relationships, and personal journey and development are often difficult to understand, and at times seem to defy explanation. Leading commentators are repeatedly puzzled both by Yosef’s actions and by the events that surround him. This book attempts to achieve a coherent and cohesive reading of the story that offers a plausible understanding of Yosef’s behaviors toward others and those of others toward him, while at the same time accounting for both his successes and his failures. Toward that ...


The Constitution As Poetry, Samuel J. Levine Jan 2019

The Constitution As Poetry, Samuel J. Levine

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Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


Defending White Space, Addie C. Rolnick Jan 2019

Defending White Space, Addie C. Rolnick

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Police violence against minorities has generated a great deal of scholarly and public attention. Proposed solutions—ranging from body cameras to greater federal oversight to anti-bias training for police—likewise focus on violence as a problem of policing. Amid this national conversation, however, insufficient attention has been paid to private violence. This Article examines the relationship between race, self-defense laws, and modern residential segregation. The goal is to sketch the contours of an important but undertheorized relationship between residential segregation, private violence, and state criminal law. By describing the interplay between residential segregation and modern self-defense law, this Article reveals ...


Fraud, Abuse, And Opioids, Stacey A. Tovino Jan 2019

Fraud, Abuse, And Opioids, Stacey A. Tovino

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This Article analyzes recent government enforcement actions involving two health care fraud and abuse authorities, including the federal Anti- Kickback Statute and the federal civil False Claims Act, in cases involving opioids.

Part II of this Article examines recent government enforcement actions involving the federal Anti-Kickback Statute, which prohibits (among other conduct) the exchange of remuneration for opioid prescriptions, patient referrals for drug testing services, and patient referrals for addiction treatment services if such prescriptions or services are reimbursed in whole or in part by a federal health care program.

Part III of this Article examines recent government enforcement actions ...


Uniformity Of State & Federal Procedure, Thomas O. Main Jan 2019

Uniformity Of State & Federal Procedure, Thomas O. Main

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No abstract provided.


Legal Analytics, Social Science, And Legal Fees: Reimagining "Legal Spend" Decisions In An Evolving Industry, Nancy B. Rapoport, Joseph R. Tiano Jr. Jan 2019

Legal Analytics, Social Science, And Legal Fees: Reimagining "Legal Spend" Decisions In An Evolving Industry, Nancy B. Rapoport, Joseph R. Tiano Jr.

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This article discusses how legal analytics can help law firms and clients understand, monitor, and improve the components that comprise bills for legal fees and expenses.


Mediation: An Unlikely Villain, Thomas O. Main Jan 2019

Mediation: An Unlikely Villain, Thomas O. Main

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Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally ...


Broken Bodies And Broken Dreams: How Social Safety Net Programs Subsidize Professional Boxing And The Need To Improve Legal And Health Protections For Prizefighters, Robert I. Correales Jan 2019

Broken Bodies And Broken Dreams: How Social Safety Net Programs Subsidize Professional Boxing And The Need To Improve Legal And Health Protections For Prizefighters, Robert I. Correales

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This article explores the lack of basic health and insurance protections for professional boxing participants and proposes changes in policy that will reflect the dangerous nature of professional boxing and the modem cost of medical services. Recognizing that a legislative remedy may never arrive, this article also examines previously unexplored or underutilized legal doctrines such as tort and workers' compensation law that may provide an alternative to inadequate insurance protection, and suggests a more aggressive approach along those lines to compel fuller protection for prizefighters.


The Masculinity Mandate: #Metoo, Brett Kavanaugh, And Christine Blasey Ford, Ann C. Mcginley Jan 2019

The Masculinity Mandate: #Metoo, Brett Kavanaugh, And Christine Blasey Ford, Ann C. Mcginley

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In fall 2019, the Senate Judiciary Committee held hearings involving Dr. Christine Blasey Ford's testimony about then-Judge Brett Kavanaugh's alleged behavior at a high school party gone awry.

This essay uses identity performance and multidimensional masculinities theories to analyze the hearings, specifically to consider the gender, race, and class performances of the participants, and how partisans and non-partisans interpreted those performances. This examination demonstrates that the judgment concerning masculinity and femininity performances and their appropriateness is, to a certain extent, in the eye of the beholder. By the same token, public interpretations are not arbitrary. Rather, at least ...


Going Rogue: Mobile Research Applications And The Right To Privacy, Stacey A. Tovino Jan 2019

Going Rogue: Mobile Research Applications And The Right To Privacy, Stacey A. Tovino

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This Article investigates whether nonsectoral state laws may serve as a viable source of privacy and security standards for mobile health research participants and other health data subjects until new federal laws are created or enforced. In particular, this Article (1) catalogues and analyzes the nonsectoral data privacy, security, and breach notification statutes of all fifty states and the District of Columbia; (2) applies these statutes to mobile-app-mediated health research conducted by independent scientists, citizen scientists, and patient researchers; and (3) proposes substantive amendments to state law that could help protect the privacy and security of all health data subjects ...


Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight Jan 2019

Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight

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Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social ...


About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon Jan 2019

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

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This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet ...


Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance Jan 2019

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

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Determining the best choice of law principle for right of publicity claims, and persuading courts to adopt this principle, will enhance predictability for potential plaintiffs and defendants in the foreseeable future. To begin this process, this article by Professor Mary LaFrance takes a critical look at the widespread practice of applying the law of the celebrity's domicile to determine the existence of an enforceable right of publicity.

This article suggests that there are strong policy arguments against the domicile rule, and that courts adhering to the rule are confusing disputes over property ownership with disputes over liability for tortious ...


Ringing Changes: Systems Thinking About Legal Licensing, Joan W. Howarth, Judith Welch Wegner Jan 2019

Ringing Changes: Systems Thinking About Legal Licensing, Joan W. Howarth, Judith Welch Wegner

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Part I examines core assumptions associated with licensing systems as well as associated ambiguities. In particular, it acknowledges multiple understandings about what “competence” is and differing assumptions about how to evaluate or measure it. Part I thus sets forth important predicates for our argument that only a multi-faceted licensing system can do what is needed in assuring minimal competence, and that not all forms of competence are best measured by traditional licensing examinations.

Part II raises the possibility of creating a post-first-year examination designed to assess critical thinking in the context of the first-year curriculum. It also considers ways in ...


Venture Bearding, Benjamin P. Edwards, Ann C. Mcginley Jan 2019

Venture Bearding, Benjamin P. Edwards, Ann C. Mcginley

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“Venture bearding,” a term that we coin in this Article, describes processes of obscuring and covering socially stigmatized identities in business environments. This Article introduces distinctive identity performance strategies from the technology, startup, and venture capital context into the legal literature and discusses what their existence explains about business environments and capital formation. Venture bearding, as we use the term, describes behaviors that persons with contextually stigmatized identities adopt to access social status and capital. In some instances, women, who are stigmatized in this context, may employ men as front persons to conceal that the venture is an exclusively women-owned ...


Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf Jan 2019

Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf

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Since the birth of the concept of a legally-recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, The Right to Privacy, common law – with the aid of influential scholars -- has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion into seclusion involving non-governmental use of drone ...


State Benchmark Plan Coverage Of Opioid Use Disorder Treatments And Services: Trends And Limitations, Stacey A. Tovino Jan 2019

State Benchmark Plan Coverage Of Opioid Use Disorder Treatments And Services: Trends And Limitations, Stacey A. Tovino

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Professor Tovino offers a survey of state benchmark plan coverage of opioid use disorder treatments and services, and identifies trends and limitations relevant thereto. Part II of the article provides background information regarding opioid use disorder and the treatments and services available for individuals with this disorder. Part III reviews federal mental health parity law and federal mandatory mental health and substance use disorder law as applied to insurance coverage of treatments and services for opioid use disorder, with a focus on the Affordable Care Act's (ACA's) state benchmark health plan selection requirement and the effect on that ...


Cybersecurity Oversight Liability, Benjamin P. Edwards Jan 2019

Cybersecurity Oversight Liability, Benjamin P. Edwards

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A changing cybersecurity environment now poses a significant corporate-governance challenge. Although some cybersecurity data breaches may be inevitable, courts now increasingly consider when a corporation's officers and directors may be held liable on theories that they acted in bad faith and failed to adequately oversee the corporation's affairs. This short essay reviews recent derivative decisions and encourages corporate boards to recognize that in an environment filled with increasing threats, a reasonable response will require devoting real resources and attention to cybersecurity issues.


Constructing More Reliable Law And Policy: The Potential Benefits Of The Underused Delphi Method, Juan Bataller-Grau, Elies Segui-Mas, Javier Vercher-Moll, Jeffrey W. Stempel Jan 2019

Constructing More Reliable Law And Policy: The Potential Benefits Of The Underused Delphi Method, Juan Bataller-Grau, Elies Segui-Mas, Javier Vercher-Moll, Jeffrey W. Stempel

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Law has long aspired to achieve status as a science. A central theme of much legal philosophy has been the quest for legal doctrine to become more like scientific axioms or findings produced through a scientific inquiry. Considerable debate has surrounded the issue. Part of the legal profession sees the question of law's science status as doomed to failure and regards law as a distinct type of discipline. Others in the legal profession are attracted to the aspiration but express doubt regarding whether the methods that the legal doctrine has traditionally employed can achieve the greater apparent rigor of ...


Mediator Burnout, Lydia Nussbaum Jan 2019

Mediator Burnout, Lydia Nussbaum

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Being a mediator is hard work Mediators must make meaningful connections with individuals without over-stepping bounds of impartiality, manage emotions without becoming emotionally invested, and empower decision-making without undermining self-determination. Decades of research into occupational stress, also known as "burnout," indicates that mediators not only are susceptible to burnout, but also that the symptoms of burnout undermine fundamental principles of quality mediation. For example, a burned-out mediator may exhibit narrow and uncreative thinking, diminished capacity to regulate emotions, compromised decision-making, and deficits in attention and memory.

The prospect of mediator burnout not only threatens the quality of mediation, but it ...


Political Dysfunction And Constitutional Structure, David Orentlicher Jan 2019

Political Dysfunction And Constitutional Structure, David Orentlicher

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In this essay, Professor Orentlicher reviews three books that analyze different features of the U.S. political system:

1. Michelle Belco & Brandon Rottinghaus, The Dual Executive: Unilateral Orders in a Separated and Shared Power System (Stanford Univ. Press 2017).

2. Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (Harvard Univ. Press 2017).

3. Martin H. Redish, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford Univ. Press 2017).


Florida Law, Mobile Research Applications, And The Right To Privacy, Stacey A. Tovino Jan 2019

Florida Law, Mobile Research Applications, And The Right To Privacy, Stacey A. Tovino

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This Article investigates whether state law contains comprehensive privacy, security, and breach notification standards that could apply to independent scientists who conduct mobile app mediated health research. Focusing only on Florida law, this Article assesses potentially relevant and applicable sources of privacy, security, and breach notification standards for health data of the type obtained during mobile app mediated health research studies. This Article concludes that, with one exception, Florida law tends to fall into one of two categories: (1) the law contains at least one data privacy, security, or breach notification standard, but the standard is limited in application to ...


A Timely Right To Privacy, Stacey A. Tovino Jan 2019

A Timely Right To Privacy, Stacey A. Tovino

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On December 28, 2017, the federal Department of Health and Human Services ("HHS") settled its fiftieth case involving potential violations of the privacy, security, and breach notification rules ("Rules") that implement the Health Insurance Portability and Accountability Act ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act ("HITECH"). This Article catalogues and examines currently available enforcement actions involving the HIPAA and HITECH Rules, including the cases in which HHS has entered into a settlement agreement with a HIPAA covered entity or business associate, the cases in which HHS has imposed a civil money penalty on a HPAA ...


Waters Of The State, Joseph Regalia, Noah D. Hall Jan 2019

Waters Of The State, Joseph Regalia, Noah D. Hall

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This article explores the "waters of the state" in three parts. First, we look to what the states say for themselves about water in their constitutions and statutes. This is not intended as a comprehensive survey, but rather a thorough sampling of the diversity in how states assert themselves over territorial water. There is a tremendous range in the scope of state assertions, in terms of both hydrologic (what waters are included) and legal scope (what states can and should do with water). The diversity and distinctions turn out to be of limited importance, though, at least on the ground ...


The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims And Remedies, Marketa Trimble Jan 2019

The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims And Remedies, Marketa Trimble

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When in Equustek v. Google a Canadian court ordered that Google de-list the pages of a defendant that infringed intellectual property (“IP”) rights under Canadian law, some commentators were surprised not only by the Canadian court’s assertion of personal jurisdiction over Google (a U.S. third party who was not a party to the original Canadian IP rights infringement litigation), but also by the court’s issuance of a remedy with global effects. However, global and other extraterritorial remedies are not unknown in IP rights infringement cases: U.S. courts have granted extraterritorial remedies in a number of such ...


Our Passive-Aggressive Model Of Civil Adjudication, Thomas O. Main Jan 2019

Our Passive-Aggressive Model Of Civil Adjudication, Thomas O. Main

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In this essay, Professor Main offers one original observation and poses two new questions about the vanishing civil trial.