Law Commons^™

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.

Exploring The Literary Function Of Law And Litigation In Njal's Saga, Henry Ordower

All Faculty Scholarship

This paper argues that whether Njal's Saga (a medieval Icelandic family saga) accurately describes litigation or correctly identifies legal rules in medieval Iceland, those descriptions primarily serve a literary function. The author uses law and litigation to accelerate or retard the plot in order to enhance dramatic tension.

Taxing Service Partners To Achieve Horizontal Equity, Henry Ordower

All Faculty Scholarship

Argues that recent judicial and administrative decisions cause the federal income tax law to tax partners who receive their partnership interests in exchange for services more favorably than partners who acquire their partnership interests in exchange for money or property. Such dissimilar treatment undercuts the desired taxation objective of even-handed treatment of all taxpayers.

The Fear Of Liability And The Use Of Restraints In Nursing Homes, Sandra H. Johnson

All Faculty Scholarship

In nursing homes, restraints are intended to protect residents with mental or physical disabilities from avoidable injuries. However, dangers inherent in the use of restraints on elderly patients - including strangulation, agitation, and unnecessary immobility - weigh strongly against restraints’ protective effects. This article identifies the risk of liability as a factor contributing to the overuse of restraints and argues against such defensive practice on legal, regulatory, and ethical grounds.

The article first considers liability sourced in negligence/malpractice litigation on restraints and highlights the often inflated and unreasonable perception of risk here. An examination of the reported cases involving restraints …

Reinvigorating Title Vi: Defending Health Care Discrimination—It Shouldn’T Be So Easy, Sidney D. Watson

All Faculty Scholarship

... Mrs. Carolyn Payne, a 21-year-old black resident of Holly Springs, Mississippi, delivered her own baby in the front seat of a truck after the emergency room of the Marshall County Hospital had refused admission.'¹

... Ysidro Aguinagas, an 1 1-month-old Hispanic baby, died... after being denied admission to a public hospital in Dimmitt, Texas, despite the fact that the hospital was ... publicly financed. The baby would not be admitted without a $450 deposit.²

... an Hispanic man, conscious and speaking Spanish, arrived at an emergency room at 7 p.m. for treatment of stab wounds suffered in …

Quality Of Care And Market Failure Defenses In Antitrust Health Care Litigation, Thomas L. Greaney

All Faculty Scholarship

This article considers quality-based justifications for antitrust challenges to collaboration among health care professionals. It first examines doctrinal developments resisting such justifications and, with a skeptical eye, analyzes attempts to interject quality of care and worthy motive defenses into antitrust appraisals of horizontal restraints of trade. Next the article assesses the economic basis and the risks and benefits of a market failure defense that would allow some quality-enhancing restraints of trade to escape antitrust challenge. Its principle recommendation is that courts recognize a narrow, market failure defense subject to several limiting principles to cabin its reach. The article concludes by …

Non-Profit Housing Organizations, Peter W. Salsich

All Faculty Scholarship

This article emphasizes that any solution to the phenomenon of homelessness must include a substantial component of permanent affordable housing and argues that nonprofit organizations can play a crucial role in resolving this housing crisis. The article surveys the variety of forms that community based housing has taken to provide housing for the most neglected groups. Typical problems nonprofit housing organizations have faced in obtaining and maintaining tax-exempt status are discussed. The tax treatment of nonprofit organizations is a significant factor in such organizations’ overall ability to maintain housing units at affordable prices. Also, reviewed is the landlord-tenant relationship when …

Quality-Control Regulation Of Home Health Care, Sandra H. Johnson

All Faculty Scholarship

This article examines the comparability of nursing homes and home health care with respect to the quality-control effects of private litigation and state licensure. It explains that the false assumption of broad comparability between nursing homes and home health care could hamper effective regulation of quality in the delivery of home health care.

This article has two main sections, the first of which compares nursing homes and home health care in the context of private litigation. Points of comparison in the litigation context include the barriers to private litigation in long-term care, issues in institutional liability, applicable standards of care, …

From Medicalization To Legalization To Politicization: Cruzan, O'Connor And Refusal Of Treatment In The 1990s, Sandra H. Johnson

All Faculty Scholarship

End-of-life decisionmaking is very often accompanied by high stakes and human drama, as evinced in the 1988 decisions of In re Westchester County Medical Center (O’Connor) and Cruzan v. Harmon. This article analyzes these two legal battles both for their place in the jurisprudence of medical treatment decisionmaking of the 1980s and foreshadowing of 1990s conflicts.

The article begins with a discussion of the O’Connor and Cruzan decisions. In O’Connor, the New York Court of Appeals ordered treatment of a significantly brain damaged patient over and above the wishes of the family, requiring “clear and convincing evidence” of the patient’s …

Decertification Of Police: An Alternative To Traditional Remedies For Police Misconduct, Roger L. Goldman, Steven Purro

All Faculty Scholarship

This article is the first in-depth examination of revocation of peace officer licenses for citizen abuse. Unlike the more familiar remedy of terminating the officer’s employment, license revocation, more commonly called decertification, has the advantage of disabling the officer from continuing to work in other departments within the state, just as occurs for myriad other professions and occupations. To determine what type of misconduct led to revocation, a file search was made of all revocations by the Florida Criminal Justices Standards and Training Commission during the time period October 1976 – October 1983. Florida was selected because it has been …

Keystone Bituminous Coal, First English, Nollan: A Framework For Accommodation?, Peter W. Salsich

All Faculty Scholarship

This article focuses on three Supreme Court cases that produced important developments for land use laws and redefined property rights: Keystone Bituminous Coal Association v. De Benedictis, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, and Nollan v. California Coastal Commission. The article discusses these cases and the implications they have for both landowners and regulators. Keystone favors property regulators while First English and Nollan favor property owners, but the article emphasizes that when these cases are read together what emerges is a sense that both landowners and regulators have important common interests which the American …

Competitive Reform In Health Care: The Vulnerable Revolution, Thomas L. Greaney

All Faculty Scholarship

This article, written at the dawn of the era of "competitive reform" in health care examines the case and prospects for the introduction of competition in health care delivery and financing. It observes the failures of the ancienne regime of fee for service payment and professional sovereignty and discusses the benefits of market-oriented policy. Its contribution, still salient today, is the lesson that competition cannot succeed without regulation. It identifies legislative, professional, and cultural hurdles to effective implementation of competitive norms and policies that have impeded the success of competition policy in health care.

The Death-Prolonging Procedures Act And Refusal Of Treatment In Missouri, Sandra H. Johnson

All Faculty Scholarship

Missouri’s Death-Prolonging Procedures Act of 1985 represents an effort to ensure that an individual’s choices regarding medical treatment will be honored, even if the individual becomes incompetent. This article considers the Act’s limiting structure and examines the effect of these limits on the effectiveness of the Act in providing a legal right to refuse medical treatment.

Following an introduction, Part II describes the limiting structure of the Act. Part III considers the way in which the Act’s limitations relate to its binding effect.

First, an individual’s declaration applies only to "death-prolonging procedures" and only if the individual is terminally ill. …

Criminal Justice Issues In Revolutionary Nicaragua, Stephen C. Thaman

All Faculty Scholarship

In this article, the author discusses his experiences traveling to Nicaragua in May 1985, as a part of a group of American lawyers and law professors invited by the Nicaraguan Association of Democratic Justice to consult on the judicial process, as well as a revolutionary struggle within the Nicaraguan institutions responsible for criminal justice. This article addresses current criminal procedure, special tribunals, and popular anti-Somocista tribunals. It also discusses a pilot project geared to improve criminal justice issues in Nicaragua.

State Regulation Of Long-Term Care: A Decade Of Experience With Intermediate Sanctions, Sandra H. Johnson

All Faculty Scholarship

The use of intermediate sanctions to enforce nursing home regulations marks a revolutionary and innovative legislative step to achieve, in addition to punishment, also rehabilitation and deterrence goals. This article evaluates the implementation of intermediate sanctions by the states, highlighting the ways in which similarities and differences in state statutes impacts effective implementation.

The article begins by considering legal challenges to state intermediate sanctions, including a constitutional challenge to the power of states to specify general standards for nursing homes and a notice challenge in light of statutory vagueness.

Next the article considers specific intermediate sanctions and makes recommendations to …

Displacement And Urban Reinvestment: A Mount Laurel Perspective, Peter W. Salsich

All Faculty Scholarship

This article discusses the continuing national debate concerning the responsibility that local governments should accept when residents are forced to leave their homes as a result of reinvestment activities encouraged by the cities and funded in part with public funds. The author explains the many different forms that reinvestment displacement may take and traces the legislative and judicial response to this issue. Despite what the author refers to as a considerable amount of buck passing, the article points out resources that are being made available to combat displacement. The article highlights the Supreme Court of New Jersey opinion in the …

Nursing Home Receiverships: Design And Implementation, Sandra H. Johnson

All Faculty Scholarship

The enforcement of legal standards governing nursing home care and safety involves complex determinations due to the precarious conditions of most residents and the vast shortage of nursing home beds. This is particularly true when residents must be transferred. This article advocates the interim measure of statutory nursing home receiverships to protect the health and safety of residents and the nursing home property while determinations regarding sanctions or compliance are being made.

Section II examines the statutory receivership provisions of four states and explains why such an approach is best suited for the effective enforcement of standards while also protecting …

Local Government In Missouri: The Crossroads Reached, Peter W. Salsich

All Faculty Scholarship

This article addresses the perceived inadequacy of the State of Missouri’s statutory tools to modernize local government. Some of the more extreme examples of conflicting and obsolete provisions in the laws affecting local government in Missouri are discussed. In many instances these obsolete statutes severely restricted the operations of municipalities. The article also looks at laws relating to special benefit districts, problems in county government, and the issue of home rule. Many of the concerns addressed in this article have to do with the overlap that exists among political subdivisions within a given area, such as counties, cities, and special …