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Articles 1 - 30 of 87
Full-Text Articles in Law
A Journey Through The Health Care Safety Net, Brietta R. Clark
A Journey Through The Health Care Safety Net, Brietta R. Clark
Saint Louis University Law Journal
No abstract provided.
Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff
Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff
All Faculty Scholarship
Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While …
Pin The Tail On The Donkey: Beneficiary Enforcement Of The Medicaid Act Over Time, Jane Perkins
Pin The Tail On The Donkey: Beneficiary Enforcement Of The Medicaid Act Over Time, Jane Perkins
Saint Louis University Journal of Health Law & Policy
During the twentieth century, Congress enacted legislation designed to improve the lives of low-income Americans. A number of these laws were enacted by Congress pursuant to the Constitution’s Spending Clause, including the Medicaid Act, which entitles certain low-income individuals to publicly funded health insurance coverage. As enacted in 1965, the Medicaid Act did not include a provision authorizing the statute’s beneficiaries to bring private enforcement actions in court. Since the early 1970s, however, program beneficiaries relied upon the Constitution’s Supremacy Clause or, more frequently, 42 U.S.C. § 1983 for the cause of action allowing them to obtain relief in court. …
Premiums And Section 1115 Waivers: What Cost Medicaid Expansion?, Sidney D. Watson
Premiums And Section 1115 Waivers: What Cost Medicaid Expansion?, Sidney D. Watson
Saint Louis University Journal of Health Law & Policy
States reluctant to adopt the Affordable Care Act’s Medicaid expansion are demanding that the U.S. Department of Health and Human Services grant them Section 1115 demonstration waivers that allow them to charge poor people premiums.
The U.S. Department of Health and Human Services has yielded to these demands, granting five states waivers of long standing federal statutory protections that limit state discretion to impose premiums for Medicaid. These premium waivers present a fundamental problem of law because the Secretary of the U.S. Department of Health and Human Services has no statutory authority to grant Section 1115 waivers that allow states …
Value Added: Utilizing The Msw Perspective, Dana M. Malkus
Value Added: Utilizing The Msw Perspective, Dana M. Malkus
All Faculty Scholarship
Regardless of practice area, we all must face the reality that our own perspectives
and skill sets—while valuable—bring with them certain limits that impact both our teaching and our lawyering. Adding other perspectives and skill sets to our practice settings is one way to move beyond these limits.
In this brief article, I provide reflections on the challenges and rewards of adding a Masters of Social Work practicum student (“MSW student”) to our transactional clinic team. The following description provides an overview of three ways the MSW student added value to the Entrepreneurship and Community Development Clinic at St. Louis …
The Rise Of Corporate Religious Liberty, Micah Schwartzman, Chad Flanders, Zoe Robinson
The Rise Of Corporate Religious Liberty, Micah Schwartzman, Chad Flanders, Zoe Robinson
All Faculty Scholarship
This Introduction to our edited book, The Rise of Corporate Religious Liberty (Oxford University Press, 2016), offers an account of the “corporate turn” in law and religion. Here the term “corporate” refers to any organized body of people - groups, associations, organizations, and institutions - and, more specifically, to for-profit corporations. Our contention is that the relationship between law and religion has shifted dramatically in the last decade, moving from a conception of religious freedom focused mainly on individual liberty toward one that privileges the rights of religious organizations. We trace this development in two stages, describing the initial movement …
Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders
Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders
All Faculty Scholarship
There is evidence everywhere that our criminal justice system is undergoing a crisis of practice. Increased police violence and the concomitant distrust of police in many communities, fear of aggressive enforcement tactics more generally, worries about widespread governmental surveillance and, above all, a concern with overcriminalization and mass incarceration-these are the dreary and familiar stuff of daily headlines. But, this crisis of practice in tum reflects a deeper crisis of how we theorize about criminal law. We lack, for the most part, any worked-out theory of what the policing and processing of crime should look like. Nor do we have …
Taste This!: Experiencing Transactional Lawyering In First-Year Contracts, Dana M. Malkus
Taste This!: Experiencing Transactional Lawyering In First-Year Contracts, Dana M. Malkus
All Faculty Scholarship
In a prior submission to The Law Teacher (“Reflection, Reality, and a Real Audience: Ideas from the Clinic"), I argued that the clinical education model provides some simple lessons that should inform all law teaching. One idea I advocated was that law teachers bring reality into the classroom whenever possible. Among other ideas, I suggested law teachers run in-class simulations based on "real world" transactions..
Over the past few years, I have had the opportunity to experiment more with this suggestion myself. At my institution, I teach a clinic course (which includes supervising students) and a transactional drafting course. I …
Marital Sharing Of Transfer Tax Exemptions, Kerry A. Ryan
Marital Sharing Of Transfer Tax Exemptions, Kerry A. Ryan
All Faculty Scholarship
This Article analyzes portability and its antecedents in order to distill a positive account of marital sharing oftransfer tax exemption amounts. Prior to 2010, the estate and gift tax exemption equivalent was a nontransferable, separate tax attribute of each spouse. A spouse could only access his or her spouse’s effective exemption by shifting property into the other spouse’s tax base. With the enactment of portability, Congress decoupled tax-free availability of a spouse’s unified credit from the necessity of a prior intra-spousal transfer. All that is required is an election by the decedent spouse, via the executor, to share the decedent’s …
Involuntary Consent: Conditioning Access To Health Care On Participation In Clinical Trials, Ruqaiijah A. Yearby
Involuntary Consent: Conditioning Access To Health Care On Participation In Clinical Trials, Ruqaiijah A. Yearby
All Faculty Scholarship
Although the controversy over the lack of consent in fetal-tissue clinical trials is relatively new, history is replete with instances of medical researchers who have conducted clinical trials with minorities and the economically disadvantaged without their consent.1 Traditionally, American bioethics has served as a safety net for the rich and powerful (for they are not forced to act as research subjects to obtain access to health care for themselves or their children) while failing to protect the vulnerable, which includes minorities and the economically disadvantaged. Without access to health care, minorities and the economically disadvantaged are unduly influenced to participate …
Importance Of State Law In Police Reform, Roger L. Goldman
Importance Of State Law In Police Reform, Roger L. Goldman
All Faculty Scholarship
Most articles on police reform concern the role of federal courts in enforcing constitutional rights under the fourth, fifth and sixth amendments through application of the exclusionary rule, criminal prosecution of law enforcement officers and pattern and practice suits brought against police departments. Additionally, much has been written about the need for civilian review of departmental discipline at the local level. In contrast, the focus of this article is on state law. On the one hand, state criminal prosecution of officers involved in shootings of unarmed, Black suspects has been shown to be ineffective because of the unwillingness of prosecutors …
Legal And Governance Structures Built To Share, Miriam A. Cherry
Legal And Governance Structures Built To Share, Miriam A. Cherry
All Faculty Scholarship
This short piece, scheduled to appear in the book "The Rise of Platform Cooperativism" (editors Trebor Scholz & Nathan Schneider), discusses the legal issues around choice of entity and governance for on-demand platforms. While platforms are currently established as for-profit businesses that typically match or hire workers, this is not the only option. Instead, new worker owned platforms are being established that could incorporate heightened labor standards. While there are no existing statues that have been written just for platform cooperatives, existing legal structures such as LLCs or B Corporations could be modified for this purpose. While not a perfect …
Beyond Misclassification: The Digital Transformation Of Work, Miriam A. Cherry
Beyond Misclassification: The Digital Transformation Of Work, Miriam A. Cherry
All Faculty Scholarship
The first part of this article provides a brief litigation update on various worker lawsuits within the gig economy. While the O’Connor v. Uber case has received the lion’s share of attention and analysis, similar lawsuits on labor standards have been filed against other on-demand platforms. Analysis of the ongoing litigation reveals several important themes, including an emphasis on the labor law of California. The second part of the article shifts from the doctrinal issues around misclassification to look at broader trends, arguing that we are currently experiencing a far-reaching digital transformation of work. The changes include thegrowth of automatic …
Crowdwork, Corporate Social Responsibility, And Fair Labor Practices, Miriam A. Cherry, Winifred R. Poster
Crowdwork, Corporate Social Responsibility, And Fair Labor Practices, Miriam A. Cherry, Winifred R. Poster
All Faculty Scholarship
Crowdwork, in which large numbers of workers find and perform paid tasks through online platforms, is a paradox. It can make job-matching and production processes more efficient, but it can also lead to a decline in labor standards. We seek to link ethical labor practices in virtual work with well-established notions of corporate social responsibility, that include concerns for worker well-being and fair treatment. We present a typology of trends in labour, and argue that the new phase of ‘crowdwork’ is distinct from previous eras of ‘industrial’ and ‘digital’ employment. The chapter then outlines three best practices for crowdwork. First …
Oh, What A Relief It (Sometimes) Is: An Analysis Of Chapter 7 Bankruptcy Petitions To Discharge Student Loans, Aaron N. Taylor, Daniel Sheffner
Oh, What A Relief It (Sometimes) Is: An Analysis Of Chapter 7 Bankruptcy Petitions To Discharge Student Loans, Aaron N. Taylor, Daniel Sheffner
All Faculty Scholarship
Conventional wisdom dictates that it is all-but-impossible to discharge student loans in bankruptcy. This contention, however, misstates the fact that bankruptcy discharge of student loans is possible—and it happens. This Article presents a statistical analysis of what happened when Chapter 7 bankruptcy petitioners in the First and Third federal judicial circuits filed 523(a)(8) adversary proceedings—or proceedings to discharge their student loan debt due to an “undue hardship.” In our analysis, we found undue hardship discharge rates of 54% in the First Circuit and 24% in the Third Circuit. But more significantly, we found that undue hardship determinations were relatively rare. …
Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho
Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho
All Faculty Scholarship
Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage …
Saving The United States From Lurching To Another Sentencing Crisis: Taking Proportionality Seriously And Implementing Fair Fixed Penalties, Mirko Bagaric, Sandeep Gopalan
Saving The United States From Lurching To Another Sentencing Crisis: Taking Proportionality Seriously And Implementing Fair Fixed Penalties, Mirko Bagaric, Sandeep Gopalan
Saint Louis University Law Journal
No abstract provided.
Why Pornography Is Not Prostitution: Folk Theories Of Sexuality In The Law Of Vice, Anders Kaye
Why Pornography Is Not Prostitution: Folk Theories Of Sexuality In The Law Of Vice, Anders Kaye
Saint Louis University Law Journal
No abstract provided.
Lane V. Franks: The Supreme Court Frankly Fails To Go Far Enough, Sara J. Robertson
Lane V. Franks: The Supreme Court Frankly Fails To Go Far Enough, Sara J. Robertson
Saint Louis University Law Journal
No abstract provided.
How Templemire V. W & M Welding, Inc. Creates Unfair Job Security, Lauren N. Rouse
How Templemire V. W & M Welding, Inc. Creates Unfair Job Security, Lauren N. Rouse
Saint Louis University Law Journal
No abstract provided.
Intermediate Scrutiny As A Solution To Economic Protectionism In Occupational Licensing, Will Clark
Intermediate Scrutiny As A Solution To Economic Protectionism In Occupational Licensing, Will Clark
Saint Louis University Law Journal
No abstract provided.
Importance Of State Law In Police Reform, Roger Goldman
Importance Of State Law In Police Reform, Roger Goldman
Saint Louis University Law Journal
No abstract provided.
Reconsidering Criminal Procedure: Teaching The Law Of The Police, Rachel Harmon
Reconsidering Criminal Procedure: Teaching The Law Of The Police, Rachel Harmon
Saint Louis University Law Journal
No abstract provided.
A Thematic Approach To Teaching Criminal Adjudication, Adriaan Lanni, Carol Steiker
A Thematic Approach To Teaching Criminal Adjudication, Adriaan Lanni, Carol Steiker
Saint Louis University Law Journal
No abstract provided.
Making Black And Brown Lives Matter: Incorporating Race Into The Criminal Procedure Curriculum, Cynthia Lee
Making Black And Brown Lives Matter: Incorporating Race Into The Criminal Procedure Curriculum, Cynthia Lee
Saint Louis University Law Journal
No abstract provided.
Burying The Lede: Why Teaching The Due Process Cases Is Critical To Investigations In Criminal Procedure, Tracey L. Meares
Burying The Lede: Why Teaching The Due Process Cases Is Critical To Investigations In Criminal Procedure, Tracey L. Meares
Saint Louis University Law Journal
No abstract provided.
Against Professing: Practicing Critical Criminal Procedure, Mae C. Quinn
Against Professing: Practicing Critical Criminal Procedure, Mae C. Quinn
Saint Louis University Law Journal
No abstract provided.