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Articles 1 - 5 of 5
Full-Text Articles in Law
Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant
Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant
Faculty Articles and Other Publications
In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell's was that such abuse of language - which in his novel he labeled "Newspeak"-would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court's June 28 decision both …
Constitutional Forbearance, A. Christopher Bryant
Constitutional Forbearance, A. Christopher Bryant
Faculty Articles and Other Publications
This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases …
Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill
Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill
Faculty Articles and Other Publications
Recent Supreme Court cases regarding Congress's abrogation authority have seriously impaired Congress's ability to demonstrate a valid exercise of its Section 5 power under the Fourteenth Amendment to subject nonconsenting states to suit for money damages in federal court. During its 2003 term, the Supreme Court has again granted certiorari to a case involving the proper scope of Congress's section 5 power, Lane v. Tennessee. Lane involves a suit for money damages under Title II of the ADA based on the alleged failure of the State of Tennessee to make its courthouses accessible. Many commentators suggest that the Supreme Court …
Physician Restrictive Covenants: The Neglect Of The Incompetent Patients' Interests, S. Elizabeth Malloy
Physician Restrictive Covenants: The Neglect Of The Incompetent Patients' Interests, S. Elizabeth Malloy
Faculty Articles and Other Publications
The article examines how courts in different jurisdictions have addressed restrictive employment covenants for physicians and proposes a new approach drawn from the third-party beneficiary analysis in contract law. Physicians hired into existing practices often must sign substantial non-compete agreements. In evaluating the enforceability of any restrictive covenant, courts consider, among other factors, the agreement's effect on the public. Surprisingly, the vast majority of jurisdictions treat the "public interest" analysis vis-a-vis physician restrictive covenants no differently than any other commercial restrictive covenant; this approach neglects the impact that such agreements can have on a physician's existing patients. Although at first …
Beyond Misguided Paternalism: Resuscitating The Right To Refuse Medical Treatment, S. Elizabeth Malloy
Beyond Misguided Paternalism: Resuscitating The Right To Refuse Medical Treatment, S. Elizabeth Malloy
Faculty Articles and Other Publications
The author focuses on the failure of the courts to provide a remedy for the right to refuse medical treatment. Health care providers, for a number of reasons, often ignore patient requests to forgo certain life-extending medical procedures. The courts have generally allowed medical professionals complete discretion in deciding whether to honor patients' requests. When patients
or their estates sue health care providers for violation of the right to refuse treatment, courts have refused to award damages. By failing to provide a remedy, the courts effectively make the right a meaningless one. While acknowledging the importance of physician autonomy, the …