Law Commons^™

Managed Care’S Crimea: Medical Necessity, Therapeutic Benefit, And The Goals Of Administrative Process In Health Insurance, William M. Sage

Faculty Scholarship

This Essay explores the concept of medical necessity as it has evolved in the judicial and administrative oversight of managed care. The goals of the Essay are to illustrate the range of plausible rationales for establishing administrative procedures to govern medical necessity disputes, and to demonstrate the difficulty of incorporating into those procedures the most important professional and social responsibilities of managed care in today’s health care system. Part I of the Essay explains the ideological and practical significance of medical necessity as managed care has evolved. Part II examines medical necessity as a legal problem, and questions whether current …

The Copyright Divide, Peter K. Yu

Faculty Scholarship

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to …

Four Common Misconceptions About Copyright Piracy, Peter K. Yu

Faculty Scholarship

Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical.

This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand, …

China And The Wto: Progress, Perils, And Prospects, Peter K. Yu, Gordon G. Chang, Jerome A. Cohen, Elizabeth C. Economy, Sharon K. Hom, Adam Qi Li

Faculty Scholarship

In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger human …

The Pernicious Effect Of Employment Relationships On The Law Of Contracts, Franklin G. Snyder

Faculty Scholarship

The relationship between employment and contract law is peculiar. On the one hand, employment in modern American society seems to be a classic voluntary agreement among consenting adults. It is a "promise or a set of promises," in the wooden but circular language of the Restatement, "for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." Thus, employment relationships figure prominently in a great many landmark contract law decisions, in areas like capacity, duress, certainty, consideration, promissory estoppel, illegality and public policy, anticipatory repudiation, mitigation of …

Opposing Excessive Use Of Employer Bargaining Power In Mandatory Arbitration Agreements Through Collective Employee Actions, Michael Z. Green

Faculty Scholarship

When you review the modern employment relationship and the role of contract, you have to start with the default position of employment-at-will, which allows an employer, in general, to terminate an employee for good reason, bad reason, or no reason at all. A number of exceptions to the employment-at-will rule exist, including tort and statutory employment discrimination claims that allow employees to seek legal remedies and punitive damage awards from juries. As these exceptions have developed outside of contract law, employers have responded by a major contractual effort to shift these disputes away from the courts and into arbitration. The …

Attorney-Client Sex: A Feminist Critique Of The Absence Of Regulation, Malinda L. Seymore

Faculty Scholarship

Doctors can't do it. Psychotherapists can't do it. Ministers can't do it. Chiropractors and social workers can't do it. But lawyers can. Lawyers, in most jurisdictions, can have sex with their clients without violating a standard of professional responsibility.

Sex between lawyers and clients occurs far more frequently than many believe. In a 1993 nationwide survey of attorneys, 18.9% of the respondents had sex with a client or knew of at least one other attorney who had. Despite this figure, there are only a handful of cases where attorneys have been disciplined for having sex with their clients. The reported …

When Can Nations Go To War - Politics And Change In The Un Security System, Charlotte Ku

Faculty Scholarship

We found that the post-World War II international security system as provided for in the United Nations Charter has adapted to a variety of new tasks, but that it remains incomplete. We discovered that the UN Charter system as a means to restrain the use of force has perhaps developed more fully than the Charter system's ability to authorize and to enable states to use force in situations other than a clear cross border invasion of a member state. At the same time, we recognized that the existence of an international institution like the United Nations has fundamentally changed the …

Conflict Of Laws (2003), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2001, through November 1, 2002. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state.

State and federal cases …

Traditional Knowledge, Intellectual Property, And Indigenous Culture: An Introduction, Peter K. Yu

Faculty Scholarship

Human communities have always generated, refined and passed on knowledge from generation to generation. Such "traditional" knowledge" [sic] is often an important part of their cultural identities. Traditional knowledge has played, and still plays, a vital role in the daily lives of the vast majority of people. Traditional knowledge is essential to the food security and health of millions of people in the developing world. In many countries, traditional medicines provide the only affordable treatment available to poor people. In developing countries, up to 80% of the population depend on traditional medicines to help meet their healthcare needs. In addition, …

Ground Water Resources And International Law In The Middle East Process, Yoram Eckstein, Gabriel Eckstein

Faculty Scholarship

Next to issues of land, water resources are the major bone of contention in the peace negotiations between Israel and the Palestinian Arabs. The objective of negotiations is de facto setting the clock back to the eve of the Israel War of Independence, when the Jews accepted the 1947 UN resolution of partition, while the Arabs rejected it. The Arabs now accept the principle of territorial partition, but at the same time, they demand re-apportioning of resources, mainly of water. The Palestinians contend that the facts created on the ground unilaterally by Israel during the last 50 years, namely the …

No Badges, No Bars: A Conspicuous Oversight In The Development Of An International Criminal Court, Mary Margaret Penrose

Faculty Scholarship

If the ICC is truly to become a world criminal court, then this body should begin to clothe itself with all the traditional components of a criminal justice system. A successful international criminal court cannot be dependent on the political will of so-called cooperating states. Crimes that fall within the jurisdiction of the ICC should be subject to prosecution by the court, which requires that there exist some body or agency capable of enforcing indictments and arresting suspected individuals. A court is but one piece of a greater body of criminal justice. In addition to the need for contemporaneous and …

Categorical Approach Or Categorical Chaos? A Critical Analysis Of The Inconsistencies In Determining Whether Felony Dwi Is A Crime Of Violence For Purposes Of Deportation Under 18 U.S.C. § 16, Timothy M. Mulvaney

Faculty Scholarship

This Note addresses whether felony DWI constitutes a crime of violence for purposes of deportation. Part II of this Note surveys Congress's broad power over immigration and the government's role in deportation. Part III identifies the standard categorical approach to felony DWI offenses employed by both the courts and the Board of Immigration Appeals (BIA) in removal proceedings and analyzes the various conclusions that the courts have reached when interpreting a "crime of violence" under 18 U.S.C. § 16(b). Part IV evaluates an apparent departure from the implementation of this categorical approach in Dalton v. Ashcroft, proposing that this departure …

Can't We All Get Along? The Case For A Workable Patent Model, Srividhya Ragavan

Faculty Scholarship

The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing …

I Don't Have Time To Be Ethical: Addressing The Effects Of Billable Hour Pressure, Susan Saab Fortney

Faculty Scholarship

This article discusses the unintended consequences of the billable hour derby and suggests changes to address the deleterious effects of increasing billable hour requirements. A brief introduction identifies law firms’ recent tendency to increase the billable hour requirements to fund the heightened salaries of associates. This article analyzes the results from an empirical study focused on the effects of billable hour expectations and firm cultures. Part I generally reviews the study findings. Part II discusses the work and report of the ABA Commission, while Part III indentifies those issues and approaches that the ABA and firm managers should explore. Recognizing …

High Drama And Hindsight: The Llp Shield Post-Anderson, Susan Saab Fortney

Faculty Scholarship

This article explores several disadvantages associated with limited liability partnerships (LLPs) in the wake of the Anderson-Enron debacle. The article explains how conversion to LLP from a traditional partnership may undercut the incentive for partners to devote time and resources to monitoring and risk management activities. Additionally, the article notes that conflicts may arise regarding the payment of debts when a firm, without sufficient malpractice insurance, converts to an LLP. The article delves into the exodus problem caused by the lack of partners’ commitment to the firm. The article also describes the tension between partners over malpractice insurance decisions that …

The Harmonization Game: What Basketball Can Teach About Intellectual Property And International Trade, Peter K. Yu

Faculty Scholarship

In the recent World Men's Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While their losses might have a significant impact on how the United States prepares for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball.

The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players …

Due Process - Prosecutorial Implications Of A Victim's Rightr To Be Heard: Court Upholds Victim's Right To Be Heard At Important Criminal Justice Hearings, Gina Warren

Faculty Scholarship

In State v. Casey, the Supreme Court of Utah was presented with questions regarding a victim's right to be heard at a change of plea hearing and standing to appeal an adverse ruling in relation to his right to be heard, as well as the appropriate form of notification and invocation of such rights. By relying heavily on the plain language of the Victims' Rights Amendment of the Utah Constitution, the Utah Victims' Rights Act and the Utah Rights of Crime Victims Act, the court held that the victim: "(1) had the right to appeal the district court's rulings …

Currents In Contemporary Ethics, Sharona Hoffmann, Andrew P. Morriss

Faculty Scholarship

Advances in reproductive technology are an established part of the medical landscape. No longer merely the subject of science fiction, new reproductive technologies are more commonly available each year. As these technologies become widespread, the law will need to recognize their existence and consider their impact on legal rules and institutions. Much as family law earlier evolved to include adopted and born-out-of-wedlock children within the legal definition of children, so too will property law need to address the reality of posthumously conceived children. Since at least some of these children will be "planned" posthumous births, simply excluding all such children …

Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?, Bobbi Mcadoo, Nancy A. Welsh, Roselle L. Wissler

Faculty Scholarship

In the 25 years since the Pound Conference, federal and state courts throughout the country have adopted mediation programs to resolve civil disputes. This increased use of mediation has been accompanied by a small but growing body of research examining the effects of certain choices in designing and implementing court-connected mediation programs.

This article focuses on the lessons that seem to be emerging from the available empirical data regarding best practices for programs that mediate non-family civil matters. Throughout the article, we consider the answers provided by research to three questions: (1) How does program design affect the success of …

Foreword: Nafta As A Lesson For Globalization, Elizabeth Trujillo

Faculty Scholarship

Since its enactment, NAFTA has impacted international business among its members and it has awakened concerns of the environmental and labor challenges that the participating countries face as they move toward economic integration. Among the many challenges, coping with the economic, legal, and cultural differences that exist among the partners has been difficult. The nations must continue to work together to harmonize their laws in such a way that allows for easier integration without impeding their sovereign power to enact laws that address local needs. At the conference entitled “NAFTA at Ten: Harmonization and Legal Transformation,” held on June 14-15, …

Market Principles For Pesticides, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Overall, pesticide use is growing in developing countries. United States' pesticide use changed in content, but remains substantial in volume. Critics of pesticide policy, including many of the speakers at this symposium, are concerned that pesticide problems are worsening. Surprisingly, thirty years after the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") reforms and the victory over DDT, the critics are not yet prepared to declare victory. Even worse from the perspective of environmental pressure groups is the change in attitude toward DDT, a substance whose name invokes extraordinary invective, where the current picture is not quite what the advocacy groups …

More Pieces Of The Ceo Compensation Puzzle, Franklin G. Snyder

Faculty Scholarship

No current issue in corporate governance is more hotly debated than the question, "Why are American CEOs paid such high salaries?" A recent and influential answer, dubbed the "managerial power" approach, has an appealing simplicity: CEOs so thoroughly control their firms' compensation-setting machinery that they simply pay themselves whatever they want, restrained only by the tenuous limits of their own avarice and the vague need to avoid public "outrage." As an explanation for a complex process, however, the simplistic managerial power approach is so flawed as to be nearly useless. The single most intriguing feature of CEO compensation for example, …

A Hydrogeological Approach To Transboundary Ground Water Resources And International Law, Gabriel Eckstein, Yoram Eckstein

Faculty Scholarship

Ground water resources have long been the neglected stepchild of water law. While agreements focusing on transboundary rivers and lakes have been relatively common, there is a paucity of treaties and international norms squarely addressing shared ground water resources. As a result, the rules governing the use, management, and conservation of transboundary ground waters is unclear at best.

This dearth is, in large part, the result of a deficit of scientific understanding among legislators, policymakers, and the judiciary. This is evidenced in many international and domestic laws and policies that have little or no scientific underpinning. Accordingly, there is a …

Between A Hard Rock And A Hard Place: Politics, Midnight Regulations And Mining, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Faculty Scholarship

Since the California Gold Rush in 1848, the mining of hard rock minerals (e.g., gold, silver, and similar minerals) on public lands has been based on the principle that discovery and development of mineral resources led to private ownership, promoting exploration and discovery of mineral resources. As with other nineteenth century land disposal statutes, such as the various homestead laws, the General Mining Law of 1872 provides for provision of mineral rights and even fee simple title to land based on the satisfaction of conditions related to use of the land and does not require significant payments to the federal …

Making Markets: Network Effects And The Role Of Law In The Creation Of Strong Securities Markets, Robert B. Ahdieh

Faculty Scholarship

As Russia and other formerly socialist states construct market economies, the appearance of strong securities markets remains an unfulfilled expectation. Notwithstanding broad privatization of state-owned enterprises and the elimination of industrial subsidies - essential precursors to demand for capital-raising securities markets - stock markets in Central and Eastern Europe remain illiquid, inefficient, and unreliable.

Strong securities markets do not, it seems, neatly follow from the welfare-maximizing behavior of individuals and institutions. Nor can the appearance of securities markets be effectively dictated by government decree. Post-communist securities market transition therefore presents a puzzle: Do markets emerge, or must they be created? …

The Laws On Providing Material Support To Terrorist Organizations: The Erosion Of Constitutional Rights Or A Legitimate Tool For Preventing Terrorism, Sahar Aziz

Faculty Scholarship

On December 4, 2001, federal agents raided the offices of the Holy Land Foundation for Relief and Development, arrested the organization’s officers, and froze $5 million worth of assets. Ten days later on December 14, 2001, the Global Relief Fund suffered the same fate when its assets were seized, and its co-founder Rabih Haddad was arrested. That same day Benevolence International’s assets were also frozen, and its U.S. citizen president, Enaam Arnaout, was arrested and taken into custody on charges of providing material support to terrorism. Prior to their effective closure, the three organizations were the largest Islamic charities in …

Linking Intellectual Property Rights In Developing Countries With Research And Development, Technology Transfer, And Foreign Direct Investment Policy: A Case Study Of Egypt's Pharmaceutical Industry, Sahar Aziz

Faculty Scholarship

This Note focuses on TRIPS' impact on the pharmaceutical industry as well as health care in developing nations. By using Egypt as a case study, this Note aims to emphasize that the benefits of TRIPS for developing nations depends on the linkage between intellectual property rights (IPR) and other legal regimes, particularly drug regulation, technology transfer, and foreign direct investment (FDI) policies. The failure to adopt a holistic approach to the creation of effective and beneficial intellectual property rights regimes will merely increase the western pharmaceuticals' market share and increase drug prices in developing nations.6 By asking whether Egypt, versus …