Law Commons^™

Freedom At Risk: The Implications Of City Of Boerne V. Flores On The Merger Of Catholic And Non-Catholic Hospitals, Heather L. Carlson

Saint Louis University Public Law Review

No abstract provided.

Protection From Paparazzi: Possible Or Preposterous?, Lena Reed Vanhoornbeek

Saint Louis University Public Law Review

No abstract provided.

Non Profit Housing Providers: Can They Survive The 'Devolution Revolution'?, Peter W. Salsich, John J. Ammann

All Faculty Scholarship

This article examines the potential of nonprofit housing providers to participate effectively in housing programs linked to the welfare reform self-sufficiency movement. It reviews proposals for housing reforms which address expanded roles for nonprofit housing providers. With actual experiences of nonprofits as a framework, it explains their organizational patterns. Further, the article explores the supportive services and incentive programs commonly included in self-sufficiency programs employed by nonprofits and suggests modifications to such programs to improve upward mobility for participants. The authors acknowledge that self-sufficiency plans are not for everyone, and suggests alternative schemes for serving those segments of the population …

The Jury As Catalyst For The Reform Of Criminal Evidentiary Procedure In Continental Europe: The Cases Of Russia And Spain, Stephen C. Thaman

All Faculty Scholarship

This paper focuses on the dialectic between the search for truth, adversarial procedure, and lay participation in the preparation, presentation, and evaluation of evidence in criminal trials. Its primary focus is on the reintroduction of trial by jury in two classic inquisitorial criminal justice systems, Russia (1993) and Spain (1995), as a catalyst in those countries’ move to adversary procedure. It focuses on the effect of the jury system on preparing evidence for trial, the presentation of evidence at trial, and the evaluation of evidence.

Nonprofit Housing Providers: Can They Survive The Devolution Revolution?, John J. Ammann

All Faculty Scholarship

This article examines the potential of nonprofit housing providers to participate effectively in housing programs linked to the welfare reform self-sufficiency movement. It reviews proposals for housing reforms which address expanded roles for nonprofit housing providers. With actual experiences of nonprofits as a framework, it explains their organizational patterns. Further, the article explores the supportive services and incentive programs commonly included in self-sufficiency programs employed by nonprofits and suggests modifications to such programs to improve upward mobility for participants. The authors acknowledge that self-sufficiency plans are not for everyone, and suggests alternative schemes for serving those segments of the population …

What Have You Done For Me Lately? Constitutional Limitations On State Taxation Of Trusts, Bradley E.S. Fogel

All Faculty Scholarship

Suppose a resident of New Jersey creates an irrevocable inter vivos trust.' The settlor subsequently dies while a resident of New Jersey. Pursuant to the terms of her will, which is probated in New Jersey, her entire estate is paid to the trust. After a few years, one of the two trustees is a New York resident, the other is a resident of Connecticut. The trust's assets, intangibles such as stock in Delaware corporations, are held by the New York trustee in New York. All of the income beneficiaries of the trust reside in New York or Connecticut.2

Question: To …

Waiting For The Verdict On Spain's New Jury System, Stephen C. Thaman

All Faculty Scholarship

This article discusses Spain’s history of trial by jury, focusing on the reinstatement of trial by jury in Spain by the 1995 jury legislation implementing Article 125 of the post-Franco Spanish Constitution. It discusses key provisions of the new Spanish jury law with illustrations from the cases of Otegi and others. It also predicts as to whether the classic jury will acquit itself as a catalyst for criminal justice reform in a Civil Law system such as that of Spain.

Night Landings On An Aircraft Carrier: Hospital Mergers And Antitrust Law, Thomas L. Greaney

All Faculty Scholarship

Abstract: Analysis of the competitive effects of hospital mergers requires antitrust tribunals to make exceedingly fine-tuned appraisals of complex economic relationships. The law requires fact finding in a number of complex areas, e.g., defining product and geographic markets, predicting the possibility of that firms will engage in coordinated behavior; and assessing efficiencies flowing from the merger. Further complicating the process is the fact that these decisions require judgments regarding what the future may hold in an industry undergoing revolutionary change. Like pilots landing at night aboard an aircraft carrier, courts are aiming for a target that is small, shifting and …

Legislating Virtue: How Segregationists Disguised Racial Discrimination As Moral Reform Following Brown V. Board Of Education, Anders Walker

All Faculty Scholarship

Shortly after the Supreme Court of the United States invalidated school segregation in Brown v. Board of Education,[1] Mississippi Circuit Judge Tom P. Brady [2] delivered a speech to a chapter of the Sons of the American Revolution on the decision’s consequences. Brady’s speech, later published and popularized throughout the South,[3] declared that the ruling’s ultimate goal was not educational equality, but racial amalgamation:[4]

Let’s get one thing unmistakably clear, the leaders of the three million block-voting negroes of the North and East and of California, together with segments of the Communist-front organizations of our population, have set as their …

Reform Of The Procuracy And Bar In Russia, Stephen C. Thaman

All Faculty Scholarship

This article discusses recent efforts to reform the Russian bar and procuracy, the institutions’ responses, and the problem of criminal procedure reform as it relates to them.

Blood, Alcohol And Tears: Juries Again Ponder The Depths Of The Russian Soul, Stephen C. Thaman

All Faculty Scholarship

This article briefly discusses the history of the jury trial in the Soviet Union and the recent reform reinstating trial by jury in Russia. It focuses on specific case studies regarding Russian jury trials under the new system. The author personally observed many of the first jury trials from December 1993 to October 1994 and comprehensively studied the Russian jury reform through observations, interviews with judges and lawyers, and review of case files.

Trusting Our Partners: An Essay On Resetting The Estate Planning Defaults For An Adult World, Henry Ordower

All Faculty Scholarship

Demonstrates that there is no tax savings to be achieved by using a trust to restrict a donee's control of property and money transferred gifts during life or at death. Reviews reasons why donors wish to continue to control wealth even after death and suggests that such reasoning is fallacious. Recommends to the estate planning bar that it revise its approach to planning in order to fulfill its obligations to the principal client and other family members. Develops mathematical formulas for analysis of estate planning decisions.

Disciplinary Actions And Pain Relief: Analysis Of The Pain Relief Act, Sandra H. Johnson

All Faculty Scholarship

Debilitating pain is a widespread problem that cuts across many patient populations. Despite a recognized ethical duty to relieve pain and effective pain management capabilities, health care professionals continue to undertreat pain.

Improved pain management begins with consideration of reasons pain is presently undertreated. Fear of disciplinary action is a central barrier to effective pain management. The Pain Relief Act represents an effort to mitigate this fear by preventing unnecessary investigations, protracted proceedings, and inappropriate legal sanctions for pain treatment.

This article begins by recognizing doctors’ legitimate fears of legal sanctions. While few doctors are actually penalized due to pain …

Let The Buyer Be Well Informed? - Doubting The Demise Of Caveat Emptor, Alan M. Weinberger

All Faculty Scholarship

Returning home from grocery shopping one evening last spring, a forty-two-year-old architect was killed in the presence of his wife and children on the street outside his St. Louis townhouse by a gunshot to the neck during an attempted carjacking.2 By the next morning, police had arrested and obtained a confession from a recently released parolee wearing an electronic ankle bracelet.3 Several homes in the neighborhood, previously considered to be generally free of serious crime, were listed for sale at the time of this incident. Human experience teaches that other homes are likely to be offered for sale in the …

Regulating For Efficiency In Health Care Through The Antitrust Laws, Thomas L. Greaney

All Faculty Scholarship

The need to evaluate the competitive consequences of cooperation among rivals has long posed a dilemma for antitrust enforcement. Collaboration can reduce rivalry, raise prices and otherwise reduce consumer welfare; at the same time cooperation among rivals carries the promise of creating cost savings, correcting market failures and producing other benefits. In many cases antitrust doctrine requires a balancing of the positive and negative effects of coordination. In health care, federal antitrust enforcement agencies have increasingly turned to regulatory tools including policy statements, advisory opinions, speeches and regulatory decrees settling cases to strike this balance. However, the agencies have paid …

Managed Care As Regulation: Functional Ethics For A Regulated Environment, Sandra H. Johnson

All Faculty Scholarship

Institutional context plays a substantive role in ethical analysis. Accordingly, efforts to apply the principles of bioethics generally and without regard for institutional context may prove difficult.

This article first addresses the aspects of two non-hospital settings - the managed care organization (MCO) and the nursing home - that make the application of hospital-derived principles of bioethics particularly difficult.

The article then considers health care providers’ complaints that extensive MCO regulations impede ethical decisionmaking and adequate care. MCO standards and regulations are value-based. Thus after identifying four categories of providers’ MCO complaints, this article evaluates the complaints under ethical norms. …

Solutions To The Affordable Housing Crisis: Perspectives On Privatization, Peter W. Salsich

All Faculty Scholarship

This article examines the government efforts to respond to affordable housing issues and summarizes the criticisms of these policies and programs. The author focuses on the privatization movement which pushes for a reduction in government participation in public housing activities in order to transfer control and responsibility to the private sector. The article also reviews European policies such as the concept of social housing. The article stresses that careful attention must be paid to the privatization mechanisms selected and emphasizes that shared expectations, shared values, and shared commitment can bring about a successful affordable housing strategy. The article describes some …

The Resurrection Of Trial By Jury In Russia, Stephen C. Thaman

All Faculty Scholarship

This article traces the genesis of the Russian jury law of July 16, 1993, and places it in the context of the criminal justice reform movement that began during the perestroika period. This article analyzes and evaluates the Jury Law on the basis of the first Russian jury trials. The purpose of this article is to isolate certain problem areas and pose questions, which must be answered in the future.

Much of the material for this paper results from the author’s personal observation of eleven of the first fourteen jury trials and parts of four more trials. The author also …

Trial By Jury And The Constitutional Rights Of The Accused In Russia, Stephen C. Thaman

All Faculty Scholarship

This article discusses the Russian criminal justice system’s transformation from the unjust Soviet system and the introduction of trial by jury. It specifically addresses the role of supplementary investigations in the new adversary procedure and the newly introduced privilege against self-incrimination. The author concludes that even though reforms have improved the Russian criminal justice system, elements of the Soviet system, such as supplementary investigations, remain, undermining the purpose of the new system.

A Theorem For Compensation Deferral: Doubling Your Blessings By Taking Your Rabbi Abroad, Henry Ordower

All Faculty Scholarship

Develops a mathematical methodology for determining whether or not to defer compensation income. Identifies special planning opportunities for United States employees of non-U.S. employers.

Managed Competition, Integrated Delivery Systems And Antitrust, Thomas L. Greaney

All Faculty Scholarship

A central question confronting proponents of managed competition during the health reform debate in 1994 was whether competitive networks or integrated delivery systems would emerge. Under reformers’ vision, controlling costs depended on the emergence of a sufficient number of efficient and viable integrated delivery systems. Conversely, if one or a few integrated networks dominate the market for physician or hospital services, rivalry on the main issues of health care cost control would likely dissipate. This article argues that vigilant and sensible antitrust enforcement was also a prerequisite for the success of the managed competition model. Despite the considerable emphasis on …

Homelessness At The Millennium, Peter W. Salsich

All Faculty Scholarship

This article discusses the government’s response to what appeared at the time to be an overnight explosion of the homeless population in big cities and small towns as a result of major economic and social changes of the early 1980s. In order to respond effectively to underlying problems of homelessness, it explores solutions that are more comprehensive than merely building shelters. The author argues that while homelessness has a direct link to poverty, the government must also address more complex causes including, the lack of adequate mental health care, substance abuse, a decline in the availability of affordable housing, and …

Urban Housing: A Strategic Role For The States, Peter W. Salsich

All Faculty Scholarship

The author argues that states have both the capacity and the opportunity to play a leading role in revitalizing national housing policy. At a time when federal housing programs were declining, state administered housing programs came to the forefront. Detailing the growth of state administered housing policies, the article notes that creative, diverse, flexible, and community planned affordable housing programs being funded by states. States also have opportunities for leadership in housing through coordinated application of state zoning powers in conjunction with state administration of federal housing programs. In conclusion, the article recommends gradually phasing out centralized federal housing in …

The Changing Nature Of The Bioethics Movement, Sandra H. Johnson

All Faculty Scholarship

Commemorating the thirtieth anniversary of the field of bioethics, this article analyzes the future of bioethics by identifying its role in intellectual history and classifying stages of its development.

Part I considers the formative role of Quinlan, where the New Jersey Supreme Court held that the withdrawal of medical treatment is legally permissible under some circumstances. Quinlan and its progeny established a legal framework for life-sustaining treatment decisionmaking, affirming the use of substituted judgment or best interests standards.

In Part II the article documents the framework shift brought by Cruzan, a high-profile case challenging a family’s authority to make medical …

Recognizing Violence Against Women: Gender And The Hate Crimes Statistics Act, Elizabeth Pendo

All Faculty Scholarship

This article argues that acts of gender-based violence should be recognized under the Hate Crimes Statistics Act of 1990, and that certain types of violence against women, such as rape, are fundamentally gender-based. Part I examines the existing definition of hate crimes under the HCSA, and the exclusion of the majority of violence against women. Part II suggests gender should be included as a category under the HCSA because of the similar effects of violence directed at women due to gender, and violence directed at members of other groups because of their group identity. Using acquaintance rape as an example, …

Health Care In The Inner City: Asking The Right Question, Sidney D. Watson

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MIAMI-June Kirchik, fifty-eight years old, discovered a large lump in her breast. When she went to a private hospital, she was denied treatment because she was indigent and her case was not considered an emergency. A public hospital performed a biopsy, which was positive, and gave her an appointment for treatment three weeks later. When Mrs. Kirchik arrived for treatment, however, the public hospital turned her away because she had not yet applied for Medicaid. Mrs. Kirchik tried another public hospital, but was turned away because she was not a resident of the hospital's service area. When Mrs. Kirchik's story …

Beyond Homelessness: Ethics, Advocacy, And Strategy, Maria Foscarinis

Saint Louis University Public Law Review

No abstract provided.

Revisiting Realization: Accretion Taxation, The Constitution, Macomber, And Mark To Market, Henry Ordower

All Faculty Scholarship

Reviews the constitutional origin of the United States realization based income taxation system and concludes that modification of that system to an accrual or accretion system would be constitutionally infirm. The article examines certain accretion rules currently in the United States tax laws, identifies the flaws in the reasoning in support of those rules in the legislative history and seeks to explain why the industries affected generally have not complained about the rules.

A Decent Home For Every American: Can The 1949 Goal Be Met?, Peter W. Salsich

All Faculty Scholarship

This article follows the shift in federal housing policy from a production emphasis during the decade after the Kerner Commission Report to a policy of limited support that enables a few low-income people to choose their own housing. It details specific legislation enacted over this period and highlights the continuing debate about the most effective use of federal housing funds. Also, discussed is the growth of state and local housing support programs, as well as the non-profit community housing development movement. The author points out that the legislative framework is in place for an effective national housing policy designed to …

Protecting Defamatory Fiction And Reader-Response Theory With Emphasis On The German Experience, Henry Ordower

All Faculty Scholarship

Examines the litigation in Germany surrounding the publication of Klaus Mann's novel Mephisto. Analyzes the concepts of libel and defamation in fictional works and concludes that neither injunctive relief nor damages is appropriate because of the limited risk of injury and the potential for adverse impact on creative expression.