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Articles 1 - 11 of 11
Full-Text Articles in Law
Independence Is The New Health, Laura D. Hermer
Independence Is The New Health, Laura D. Hermer
Faculty Scholarship
Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.
This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …
Legal History Of Medical Aid In Dying: Physician Assisted Death In U.S. Courts And Legislatures, Thaddeus Pope
Legal History Of Medical Aid In Dying: Physician Assisted Death In U.S. Courts And Legislatures, Thaddeus Pope
Faculty Scholarship
Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.
Medical aid in dying (MAID) is not yet legally available in …
School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert
School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert
Faculty Scholarship
More than ten years have passed since the United States Supreme Court last addressed school desegregation. In its abbreviated tenure in the decades following Brown v. Board of Education, school desegregation was successful in many respects. Longstanding policies of state-sponsored educational apartheid eventually ended. A great many school buildings became more diverse. Countless students of color gained access to improved academic opportunities and better life outcomes. A consensus formed around the positive impacts that desegregation could have on both students of color and white students. When courts retreated from upholding desegregation policies, many communities developed their own voluntary plans, some …
Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg
Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg
Faculty Scholarship
Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.
Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …
We Interrupt This Program...To Talk Of Transfer Restrictions, Daniel S. Kleinberger
We Interrupt This Program...To Talk Of Transfer Restrictions, Daniel S. Kleinberger
Faculty Scholarship
A recent Iowa decision, REG Washington, LLC v. Iowa Renewable Energy LLC, is a useful first word on transfer restrictions applicable to ownership interests in a limited liability company, and more particularly transfer restrictions applicable to so-called transferable interests, i.e., economic rights. The decision’s analysis centers around the “pick your partner” principle and expressly rejects any analogy to corporate law cases addressing stock transfer restrictions. The decision raises certain issues and is hardly the last word on this topic.
The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen
The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen
Faculty Scholarship
On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.
No Longer Peas In A Pod: More Implications Of The Divorce Of Minnesota Corporate And Llc Law, Daniel S. Kleinberger
No Longer Peas In A Pod: More Implications Of The Divorce Of Minnesota Corporate And Llc Law, Daniel S. Kleinberger
Faculty Scholarship
Twenty-five years ago, when an MSBA task force drafted Minnesota’s first limited liability company(LLC) statute, the drafters copied chapter 302A, the corporate statute, to the maximum extent possible. Labels were changed—e.g., member instead of shareholder; board of governors instead of board of directors— and substance was modified to the extent necessary to comply with the then-applicable tax classification regulations. But otherwise, the task was an exercise in replication.
The approach was far out of the mainstream. Almost everywhere else LLC statutes were being derived from partnership law. The task force’s rationale for going rogue was straightforward. At the time, most …
How Can I Be A Party To A Contract And Yet Lack Standing To Sue Another Party For Breach?, Daniel S. Kleinberger
How Can I Be A Party To A Contract And Yet Lack Standing To Sue Another Party For Breach?, Daniel S. Kleinberger
Faculty Scholarship
The distinction between direct and derivative claims follows necessarily from the concept of a legal person being separate and distinct from its owners, raises and resolves a question of standing, has serious practical consequences in litigation, and is central to the governance of any business entity. In a closely held business, the distinction usually protects the deal the owners have made for themselves. On some occasions, however, the distinction helps shelter a miscreant majority owner who has managed to harm a fellow owner indirectly.
This column will briefly describe the three approaches to the direct-derivative distinction found in the case …
Beyond Strict Scrutiny: Forbidden Purpose And The "Civil Commitment" Power, Eric S. Janus
Beyond Strict Scrutiny: Forbidden Purpose And The "Civil Commitment" Power, Eric S. Janus
Faculty Scholarship
Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as …
What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer
What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer
Faculty Scholarship
Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …
Protecting The Sacred Writing: The Operating Agreement, Daniel S. Kleinberger
Protecting The Sacred Writing: The Operating Agreement, Daniel S. Kleinberger
Faculty Scholarship
This column provides practical steps toward protecting an LLC's written operating agreement from claims of oral or implied-in-fact modification. Such claims undercut the purpose of “reducing the agreement to writing,” replacing definiteness with uncertainty and substituting swearing matches for the written word.