Law Commons^™

The Fox Guarding The Henhouse: The Regulation Of Pharmacy Benefit Managers By A Market Adversary, Joanna Shepherd

Northwestern Journal of Law & Social Policy

Pharmacy benefit managers (PBMs) save Americans billions of dollars each year by lowering both the prices that consumers pay for prescription drugs and the prices that health plans pay for drug coverage. As I explain in this Article, however, new regulatory developments in some states threaten to undercut competition in the PBM industry and disrupt the cost-savings PBMs currently generate. The regulatory scheme that was adopted by Mississippi in 2011, and that is currently under legislative consideration in several other states, shifts regulatory control of PBMs from the neutral Insurance Commissions to the states’ Boards of Pharmacy. The fundamental problem …

Sentencing The Family: Recognizing The Needs Of Dependent Children In The Administration Of The Criminal Justice System, Tamar Lerer

Northwestern Journal of Law & Social Policy

Hundreds of thousands of incarcerated persons are parents; in many instances, their incarceration has profound effects on their young children. Despite the predictable harm that the these children experience when their caretakers are incarcerated, the criminal justice system lacks a uniform, principled, and transparent way to consider their interests at critical stages in the process.

In this Article, I argue that the interests of the children of incarcerated offenders should be considered and demonstrate how this can be done. The paper proceeds in three Parts. In the first Part, I explain why we should care about caretaker incarceration: it harms …

Booking Students: An Analysis Of School Arrests And Court Outcomes, Kerrin C. Wolf

Northwestern Journal of Law & Social Policy

The fate of school discipline and security in America is at a crucial turning point. While the “school-to-prison pipeline” has recently received an increased amount of attention from policy makers interested in improving public education, the recent shooting at Sandy Hook Elementary School in Connecticut led to renewed calls for the heightened security measures that helped give rise to the pipeline. This article provides clear evidence that heightened disciplinary and security measures in schools are faulty policy responses, as they have adverse impacts on the students they intend to protect and siphon resources away from policies that more effectively ensure …

Sex In The Sexy Workplace, Lua Kamál Yuille

Northwestern Journal of Law & Social Policy

This article presents yet another problem that cannot be addressed adequately either through an honest application of existing sexual harassment paradigm under Title VII of the Civil Rights Act of 1964 or through any of the solutions to that paradigm’s deficiencies that have been proffered since its inception: hostile environment sexual harassment of the non-sexualized worker in the “sexy” workplace. It offers a comprehensive doctrinal illustration of how both existing sexual harassment doctrine and popular critiques of that doctrine fail to respond to the unique case of the sexual harassment of a non-sexualized worker in the sexual titillation industry (e.g. …

Fqhcs And Health Reform: Up To The Task?, James Hennessy

Northwestern Journal of Law & Social Policy

This Article addresses the future of Federally Qualified Health Centers (FQHCs) in an entirely reformed primary care landscape under the Affordable Care Act (ACA). Given health centers’ ability to fill crucial access gaps that will remain after health reform, FQHCs stand to undertake an increased role and are thus vital to the implementation of the ACA. Yet questions remain as to whether current FQHCs are capable of taking on an increased demand for services resulting from ACA expansion. Health centers are already busy, and more patients are coming as many burdens of health reform will inevitably fall on their shoulders. …

Skin Flicks Without The Skin: Why Government Mandated Condom Use In Adult Films Is A Violation Of The First Amendment, Elizabeth Sbardellati

Northwestern Journal of Law & Social Policy

The filming of sexual acts for publication is legal in California, which has led to the development of a robust adult film industry in Southern California, particularly in the Los Angeles area. Recently, regulations have been proposed that would require actors in pornographic films to wear condoms. This comment examines legal objections to “The County of Los Angeles Safer Sex in the Adult Film Industry Act” and CalOSHA’s assertion that California law requires the use of prophylactics in adult films. It argues that sexual expression in these adult films is protected under the First Amendment, although it may still be …

Preventing A Return To Twilight And Straitjackets: Using The Patient Protection And Affordable Care Act As A Starting Point For Evidence-Based Obstetric Reform In The United States, Alexius Cruz O'Malley

Northwestern Journal of Law & Social Policy

The United States has the most medicalized approach to childbirth of any nation in the world. Women in the United States have a greater lifetime risk of dying due to pregnancy-related complications than women in forty other developed nations. Babies born in the United States have a higher risk of dying within the first months of life than babies born in the forty other countries. Poor outcomes combined with costly, procedure-intensive care have been labeled the “perinatal paradox: doing more and accomplishing less.” Inspired by her own pregnancy and childbirth experience, the Author explores this “perinatal paradox” and the state …

Does Research With Children Violate The Best Interests Standard? An Empirical And Conceptual Analysis, Seema Shah

Northwestern Journal of Law & Social Policy

Even as research with children has increasingly been recognized as urgently needed for generating effective treatments for childhood diseases, drug formulations for infants and young children, and dosages appropriate for children, it has remained controversial. Scholars have engaged in heated debates over whether non-beneficial research with children is morally and legally justified. On one point, however, there has been agreement: Whether they support or criticize pediatric research, commentators generally assume that pediatric research should be justified under the “best interests of the child” legal standard. This assumption not only threatens important research and public health interventions, but it is also …

Race And Gender On The Bench: How Best To Achieve Diversity In Judicial Selection, Constance A. Anastopoulo, Daniel J. Crooks Iii

Northwestern Journal of Law & Social Policy

How can states increase diversity on the bench? This article begins by presuming that increasing racial and gender diversity is a worthy goal—among other positive results, a diverse bench increases the judicial system’s perceived legitimacy by increasing a diverse citizenry’s confidence that judges will treat them fairly and impartially. Next we examine the unique judicial selection systems of South Carolina and Virginia—where the entire process is controlled exclusively by the state legislature—and reach the counterintuitive conclusion that these systems actually increase judicial diversity very effectively when compared with the systems of other states. Finally, we propose four specific reforms to …

'Til Death Do Us Part: The Difficulties Of Obtaining A Same-Sex Divorce, Ellen Shapiro

Northwestern Journal of Law & Social Policy

This Article explores a problem faced by many wedded same-sex couples: the difficulty in obtaining a divorce. Suppose two men from Pennsylvania travel to Massachusetts to obtain a marriage license and return to Pennsylvania shortly thereafter. If their marriage breaks down, the couple will be unable to divorce in the state because Pennsylvania refuses to recognize the marriage for any purpose. Moreover, due to Massachusetts’ residency requirement, the couple cannot simply travel back to Massachusetts to divorce. Because this problem is in part encouraged by state mini-DOMAs, and the Supreme Court has the opportunity to rule on DOMA’s constitutionality, this …

Multilingual Prospective Jurors: Assessing California Standards Twenty Years After Hernandez V. New York, Farida Ali

Northwestern Journal of Law & Social Policy

This Article explores the ramifications of linguistically motivated peremptory challenges against multilingual prospective jurors in California in the twenty years since such challenges were legitimatized under Hernandez v. New York. An examination of state and federal case law reveals that the pretext analysis for reviewing Hernandez-based peremptory challenges remains both an arbitrary and a flawed tool that California courts have, nevertheless, been reluctant to second-guess. This problem is particularly acute in California because it is home to the largest multilingual population in the United States, with 43% of Californians speaking a language other than English. California, therefore, provides …

The Asylum Claim For Victims Of Attempted Trafficking, Kelly Karvelis

Northwestern Journal of Law & Social Policy

The state of the law regarding refugees in the United States has been characterized in the recent past by inconsistent rulings among the Circuit Courts, and narrow applications of the Immigration and Nationality Act of 1952, which provides the basis for asylum eligibility. In the midst of this sometimes-contradictory application of the INA, victims of attempted sex trafficking (those who have faced threats or attempts by sex traffickers to force them into sexual slavery) have consistently been rejected for asylum by U.S. courts. Federal courts have uniformly denied these asylum claims by ruling that these victims do not meet the …