Law Commons^™

The Supreme Court Limits Lawsuits Against Managed Care Organizations, Timothy Stoltzfus Jost

Scholarly Articles

In Aetna Health Inc. v. Davila, the United States Supreme Court revisited the question of whether the Employee Retirement Income Security Act (ERISA) precludes state lawsuits against ERISA plans. The Court held that ERISA preempts damage actions brought against managed care organizations under the Texas Health Care Liability Act because ERISA itself provides the exclusive remedy for challenging ERISA plans' coverage decisions. The Court suggested, however, that health plans might be liable for treatment decisions made by employed physicians. It also volleyed back to Congress the question of whether ERISA beneficiaries should have any remedy for damages caused by coverage …

Kimbell V. United States: The Rise And Apparent Fall Of The Section 2036 Argument Against Flps, Brant J. Hellwig

Scholarly Articles

In this report, Professor Hellwig examines the application of section 2036 to family limited partnerships in the context of the Fifth Circuit's recent opinion in Kimbell v. United States. After describing how the government developed section 2036 into an effective tool in combating the use of family limited partnerships to generate transfer tax savings, the report details how the Fifth Circuit's interpretation of the adequate and full consideration exception to section 2036 in Kimbell severely curtails the government's position. The report concludes with criticisms of the Kimbell decision, namely that the court failed to properly follow its own precedent in …

Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla

Scholarly Articles

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Risk Assessment: Promises And Pitfalls, Nora V. Demleitner

Scholarly Articles

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'Lesser Evils' In The War On Terrorism, Mark A. Drumbl

Scholarly Articles

No abstract provided.

Why Can't We Do What They Do? National Health Reform Abroad, Timothy Stoltzfus Jost

Scholarly Articles

This article describes how other countries organize and finance their health care systems, and how the performance of those health care systems compares with that of the United States. It also examines why the United States, unlike all other developed countries, has failed to provide universal access to health care services.

Brown Ii'S "All Deliberate Speed" At Fifty: A Golden Anniversary Or A Mid- Life Crisis For The Constitutional Injunction As A School Desegregation Remedy?, Doug Rendleman

Scholarly Articles

In 1955 in Brown II the Supreme Court instructed school authorities and federal judges how to implement its decision in Brown I that racially segregated public schools violated the constitution. This article summarizes the half-century of federal injunctions that the courts granted to desegregate schools. It organizes the injunctions chronologically under three headings, "all deliberate speed," desegregate "now," and "unitary" districts. Rejecting both extravagant hoopla and charges of "failure," the article approves disciplined judicial discretion leading to large-scale structural injunctions when the times are ripe because unconstitutional conditions warrant massive judicial reconstruction. In particular, the article maintains that the courts' …

Health Law And Administrative Law: A Marriage Most Convenient, Timothy Stoltzfus Jost

Scholarly Articles

This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the …

The Alien Tort Claims Act Under Attack: Introductory Remarks, Mark A. Drumbl

Scholarly Articles

None available.

Rights, Culture, And Crime: The Role Of Rule Of Law For The Women Of Afghanistan, Mark A. Drumbl

Scholarly Articles

This Article explores the role of rule of law in redressing crimes and human rights abuses committed against the women of Afghanistan. Mainstream discourse approaches the situation binarily, obliging women to choose between international and often distant human rights, on the one hand, or proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan is reflected in codes such as the …

Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield

Scholarly Articles

Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations.

A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …

Free The Fortune 500! The Debate Over Corporate Speech And The First Amendment, Rodney A. Smolla

Scholarly Articles

Examines the lessons to be learned in the U.S. Supreme Court landmark free speech case in "Nike Inc. v. Kasky".

Nineteen Rules To Dean By, Rodney A. Smolla

Scholarly Articles

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Professional Sovereignty In A Changing Health Care System: Reflections On Paul Starr's The Social Transformation Of American Medicine, Timothy Stoltzfus Jost, Keith Wailoo, Mark Schlesinger

Scholarly Articles

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The Uses Of The Social Transformation Of American Medicine: The Case Of Law, Timothy Stoltzfus Jost

Scholarly Articles

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Litigation Expenses And The Alternate Minimum Tax, Brant J. Hellwig, Gregg D. Polsky

Scholarly Articles

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A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla

Scholarly Articles

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A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill

Scholarly Articles

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …

The Sarbanes-Oxley Act And Fiduciary Duties, Lyman P. Q. Johnson, Mark A. Sides

Scholarly Articles

This article explores the implications of the Sarbanes-Oxley Act of 2002 for fiduciary duty analysis in corporate law. The article examines those provisions of the Act, and recent SEC, NYSE and NASDAQ rules, that most pointedly bear on corporate governance. The article develops in detail exactly how Sarbanes-Oxley and those rules may alter state fiduciary duty law. Sarbanes-Oxley makes unprecedented federal inroads into the area of corporate governance and, although the fact of federal incursion into corporate governance is important in its own right, the more intriguing issue concerns the eventual interplay between federal and state law. Specifically, on various …

Evidentiary Surrogacy And Risk Allocation: Understanding Imputed Knowledge And Notice In Modern Agency Law, Marin Roger Scordato

Scholarly Articles

This article deals with the imputed knowledge rule in agency law. The basic rule imputes to a principal knowledge or notice received by an agent within the scope of the agent's authority. The principal is deemed to have received the information in question even in the absence of any evidence that the agent successfully transmitted it to the principal.

As the article clearly demonstrates, the imputed knowledge rule is currently characterized by complexity and contradiction. The analysis developed in the article suggests that this convolution and uncertainty is the result of the existence of a fundamental tension residing at the …

Sacrifice In The Public Square: Ciceronian Rhetoric In More’S Utopia And Ultimate Ends Of Counsel, A.G. Harmon

Scholarly Articles

The different rhetorical strategies of the characters in Thomas More's Utopia reveal parallels with Cicero's rhetoric and philosophy. Those parallels resonate with the modern discourse of "counsel, " and provide a context through which the nature of the counselor's dilemma - a tension between what should be done and what can be done - is analyzed.

Business As A Vocation: Implications For Catholic Legal Education, George E. Garvey

Scholarly Articles

The business culture and laws of the U.S. stress the obligation of corporate managers to maximize the profits of the firm's shareholders. An excessive focus on profits, however, can deny managers any meaningful sense of vocation. It reduces the role of managers, and those who they manage, to mere cogs in the productive processes of their firms. Managers informed by the Catholic social tradition can exercise their responsibilities with a sense of vocation. Catholic professional schools, including law schools, should foster the sense of vocation in graduates by presenting the fundamental principles of Catholic social teaching early in the curriculum …

Clergy, Sex, And The American Way, Raymond C. O'Brien

Scholarly Articles

Part I of the Article discusses the two hundred year history of the Roman Catholic Church in America. Internationally the Church has over a billion members, but the American Church has distinctive characteristics that have allowed it to prosper and serve as a model for other nations.

Growth, involvement, wealth, and a nexus between being American and being Catholic evidenced by cooperation with civil authorities are among the characteristics. The Charter is now a marker in that history. Part II examines what happened to bring about the crisis of the sexual abuse of minors by clergy. In spite of the …

Gandhi And Justice, Raymond B. Marcin

Scholarly Articles

Mohandas K. Gandhi, the great and saintly Mahatma of India, once made a characteristic but nonetheless provocative statement about justice: “That action alone is just,” he wrote, “which does not harm either party to a dispute.” There have been instances in Western jurisprudence in which that Gandhian—essentially Eastern - understanding of justice sometimes surfaces. Several decades ago, Martin Luther King Jr., in a groundswell of Gandhian activism, raised that Gandhian understanding of justice to a position of near dominance in Western thought. It may be no coincidence that both King and Gandhi suffered the same fate for their troubles. Conventional …

The Geneva Proposals For Peace: Still Viable, Ziad J. Asali, Marshall J. Breger, Milton Viorst, Philip C. Wilcox Jr.

Scholarly Articles

No abstract provided.

Crawford V. Washington: The Supreme Court Opts For A New (Old?) Approach To The Confrontation Clause, Clifford S. Fishman

Scholarly Articles

No abstract provided.

Technology And The Internet: The Impending Destruction Of Privacy By Betrayers, Grudgers, Snoops, Spammers, Corporations And The Media, Clifford S. Fishman

Scholarly Articles

This Article reviews how the Internet and related developments-technological, social, and legal-have magnified the threat to privacy posed by private individuals, commercial enterprises, and the media. It offers a brief overview of the current threats to privacy from sources other than the government, and, in particular, the impact of the Internet in creating or magnifying those threats. Part I discusses the threat to privacy in general, examining how the Internet and developments in surveillance technology, in information storage and retrieval, in dissemination of information, sound, and images, and changes to the informal "social contract" that defines general standards have all …

Cross Burning – Hate Speech As Free Speech: A Comment On Virginia V. Black, Roger C. Hartley

Scholarly Articles

This Article concerns the criminalization of cross burning. This act of symbolic expression sometimes communicates hate, inspires fear of impending bodily harm, expresses an ideology and solidarity with others, or encompasses combinations of these. In 1991, Edward Cleary defended a White juvenile, known in court documents as R.A.V., who had burned a cross on the lawn of a Black family. In that litigation, Cleary began his oral argument to the Supreme Court by posing this question: To what degree does abhorrence of cross burning justify banning it? That question still baffles us. Establishing appropriate boundaries for the protection of speech …

Misconduct By Law Professors: Why It Matters, Lisa G. Lerman

Scholarly Articles

No abstract provided.

Constitutionalization Of Human Rights In Post-Soviet States And Latin America: A Comparative Analysis, Rett R. Ludwikowski

Scholarly Articles

This Article consists of four parts. The first, which is more general, addresses the question to what extent the system of governance adopted by the countries of the two regions affected the record of the states' protection of human rights. For instance, this Article considers whether democratization of the political system necessarily results in better protection of human rights. The second part analyzes the placement of human rights in the framework of the Latin American and post-Soviet constitutions. The third part identifies and discusses the problem of individual and group rights, an issue crucial for both regions. The fourth part …