Law Commons^™

Drug Dealing And The Internal Morality Of Medicine, Matt Lamkin

Articles, Chapters in Books and Other Contributions to Scholarly Works

Which practices qualify as “medical” in nature? This question has important legal implications. Every state has laws prohibiting the “unauthorized practice of medicine.” Health insurance policies generally limit coverage to procedures that are “medically necessary.” And physicians can be prosecuted as drug traffickers if they prescribe controlled substances without a “legitimate medical purpose.” Each of these questions—and many others—hinge on how medicine is defined.

As with many common terms, we all have a general understanding of what medicine is and this heuristic suffices to carry us through our daily lives without complication. Yet when called on to produce a precise …

Operationalising Progressive Ideas About Property: Resilient Property, Scale, And Systemic Compromise, Marc L. Roark, Lorna Fox O'Mahony

Articles, Chapters in Books and Other Contributions to Scholarly Works

Property theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the …

Consumer Willingness-To-Pay For A Resilient Electrical Grid, Warigia M. Bowman, Dayton M. Lambert, Joseph T. Ripberger, Hank Jenkins-Smith, Carol L. Silva, Michael A. Long, Kuhika Gupta, Andrew Fox

Articles, Chapters in Books and Other Contributions to Scholarly Works

The research objective is to estimate consumer willingness to pay (WTP) for electricity grid fortification. Data are from a representative survey of Oklahoma citizens. Extreme weather events, aging utility infrastructure, increased demand for affordable energy, and terrorism threaten the safety and security of the way most citizens access electricity. This study is a first look at public willingness to support energy grid security measures in the United States Southern Great Plains. Findings suggest that consumers would pay an additional $14.69 in monthly utility bills for a fortified grid. This WTP estimate is close to a recent energy bill hike of …

A Fiduciary Principle Of Policing, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Stop Threatening Nails With Wrenches: Why Military Contractor Misdeeds Abroad Should Be Handled Using The Uniform Code Of Military Justice Rather Than The Current Civilian First Strategy, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Many legal violations by military contractors are never addressed through the legal system. This is despite Congress having enacted two laws that attempt to hold contractors accountable for crimes committed abroad. The reason for this gap is that the military has adopted a civilian-first strategy where the primary choice of prosecution is delegated to the Department of Justice. This is a mistake. This article explains why the civilian-first strategy has been so unsuccessful and how the military can appropriately move to a military-first strategy. Doing so would provide the military better control over the Total Force, which is particularly important …

Reviewing Mixed Questions Of Fact And Law In Administrative Adjudications: Why Courts Should Move To “Substantially Established Facts”, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Courts are inconsistent in how they review mixed questions of fact and law in administrative adjudications. Many courts simply and unquestioningly review the entire mixed issue using only substantial evidence review. This grants extreme and unquestioning deference to any legal interpretation used by the agency, far more than would be available to it under the increasingly besieged Chevron doctrine, despite the fact that the adjudications being reviewed in this manner generally would not even be entitled to Chevron deference if the legal component of the mixed question were analyzed separately. Courts should therefore analyze the different components of a mixed …

Introduction To Symposium On Policing And Political Philosophy, Stephen R. Galoob, Jake Monaghan

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Legal Implications Of A Reservation Of Rights Defense Examined In The Context Of Recoupment Of Defense Costs And Tripartite Conflicts Of Interest, Johnny C. Parker, Tim J. Schaefer

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Key To Solving Agency Lock-In: Prepublication Regulatory Discussions (Pre Reg), Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Most legally binding administrative rules emerge from the notice-and-comment process, which explicitly requires the agency to consider input from the general public. However, by the time the opportunity for public input occurs, the agency is already substantially locked into its chosen approach and cannot act on new information in the comments. This is true even though its chosen approach was decided upon with input from only those the agency routinely deals with. This process entrenches already established interests and prevents those without existing agency connections from meaningfully contributing earlier in the process.

This problem could be solved by holding public …

Dust In The Wind: Regulation As An Essential Component Of A Sustainable And Robust Wind Program, Warigia M. Bowman

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Rights Should Not Vary Based On Offense Severity, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Some constitutional rights of criminal procedure apply unequally, varying based on offense (or punishment) severity. Of these, some vary proportionally, attaching or strengthening as offense severity increases. For example, the Sixth Amendment guarantees the rights to appointed counsel for indigents and jury trial for defendants charged with any felony but only some misdemeanors. In contrast, other rights are inversely proportional. For example, the strength or applicability of some aspects of the Fourth Amendment right against unreasonable searches and seizures and the Eighth Amendment right against excessive bail decrease as offense severity increases. This Article examines whether such rights should vary …

Dustbowl Waters: Doctrinal And Legislative Solutions To Save The Ogallala Aquifer Before Both Time And Water Run Out, Warigia M. Bowman

Articles, Chapters in Books and Other Contributions to Scholarly Works

Eighty-three years after the Dust Bowl, residents of America’s High Plains face a dire threat: their primary aquifer faces depletion, and entire sections of the country are set to run out of groundwater by the end of the century or sooner. The Ogallala Aquifer provides a significant amount of America’s agricultural irrigation water and is a primary source of drinking water for Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming. This Article argues that policymakers should slow the Aquifer’s depletion rate by implementing changes to irrigation technology, crop choice, consumer behavior, legal doctrine, and legislation. This Article …

Freedom To Hack, Ido Kilovaty

Articles, Chapters in Books and Other Contributions to Scholarly Works

Swaths of personal and nonpersonal information collected online about internet users are increasingly being used in sophisticated ways to manipulate them based on that information. This represents a new trend in the exploitation of data, where instead of pursuing direct financial gain based on the face value of the data, actors are seeking to engage in data analytics using advanced artificial intelligence technologies that would allow them to more easily access individuals’ cognition and future behavior. Although in recent years the concept of online manipulation has received some academic and policy attention, the desirable relationship between the data-breach law and …

Legally Cognizable Manipulation, Ido Kilovaty

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Oklahoma’S State Question 780: Criminal Justice Reform And Resistance, Stephen R. Galoob, Colleen Mccarty, Ryan Gentzler

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Detecting And Preventing Insurance Fraud: State Of The Nation In Review, Johnny C. Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants' other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment-imprisonment. Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants' other constitutional rights generally facilitate just the oppositeminimizing jeopardy by reducing charges, lessening the likelihood of guilt, …

Climbing The Mountain Of Criminal Procedure: Comparative Legal Procedure, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

Book review of Comparative Criminal Procedure (Jacqueline E. Ross & Stephen C. Thaman eds., Edward Elgar, 2016)

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Articles, Chapters in Books and Other Contributions to Scholarly Works

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts.Our understanding of civil justice is based primarily on federal litigationand the decisions of appellate judges. Staggeringly little legalscholarship focuses on state courts and judges. We imply do not know what mostjudges are doing in their day-to-day courtroom roles or in their roles asinstitutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the …

In Praise Of Legal Scholarship, Tamara R. Piety

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Active Judging And Access To Justice, Anna E. Carpenter

Articles, Chapters in Books and Other Contributions to Scholarly Works

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Retributivism And Criminal Procedure, Stephen Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Involuntarily Committed Patients As Prisoners, Matt Lamkin, Carl Elliott

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Courtesy Paratexts, Informal Publishing Norms And The Copyright Vacuum In Nineteenth-Century America, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

In response to the failure of U.S. copyright law to protect foreign authors, nineteenth-century American publishers evolved an informal practice called the “courtesy of the trade” as a way to mitigate the public goods problem posed by a large and ever-growing commons of foreign works. Trade courtesy was a shared strategy for regulating potentially destructive competition for these free resources, an informal arrangement among publishers to recognize each other’s wholly synthetic exclusive rights in otherwise unprotected writings and to pay foreign authors legally uncompelled remuneration for the resulting American editions. Courtesy was, in effect, a makeshift copyright regime grounded on …

Inconsistent Rationales For Capital Punishment Plus, Russell Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Exculpation As Inculpation, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Should a criminal defendant who contrives, creates, or causes the conditions of her own defense forfeit the defense? For example, suppose a provocateur taunts a provocatee into unlawfully attacking so that the provocateur may justifiably kill in self-defense. There are two competing approaches. Under the principle that defense-contrivers have "unclean hands," the predominant approach of the criminal law is to bar the defense (the Legal approach). Disagreeing, most criminal theorists advocate both granting the contrived defense and, seemingly paradoxically, imposing criminal liability for culpably contriving the defense (the Theoretical approach). That is, seeking exculpation is itself inculpatory. The Theoretical approach …

The Role Of Prejudice In Resolving Insurance Condition Clause Disputes: The Good; The Bad; The Ugly, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

This Article examines the legal consequences that flow out of an insurance company’s denial of coverage based on an insured’s failure to comply with policy conditions. Specifically, this Article examines the various methods used by courts to strike a balance between the principle of freedom of contract and policy norms associated with resolving condition clause disputes. The pros and cons of the historical condition precedent vs. condition subsequent analysis and the modern day functional approach to contractual interpretation are dissected and discussed in the insurance contract context. The prejudice rule, which is associated with the functional approach to contract interpretation, …

Coercion, Fraud, And What Is Wrong With Blackmail, Stephen Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Tribal Labor Sovereignty Act: Do Indian Tribes Finally Hold A Trump Card?, Vicki J. Limas

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.