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Issue 35 Cover, Case Western Reserve University School Of Law

Health Matrix: The Journal of Law-Medicine

No abstract provided.

E/Insuring The Ai Age: Empirical Insights Into Artificial Intelligence Liability Policies, Anat Lior

Connecticut Insurance Law Journal

Insurance represents an important but underappreciated part of our lives. Both individuals and corporations gain from purchasing coverage from insurers to manage and hedge their risks. It is a necessary mechanism in modern society to support innovation while ensuring that its unavoidable victims will be compensated. The innovation of emerging technologies alters the existing risk landscape, challenging insurance companies, innovators, and individuals' ability to manage their risks. The current emerging technology of Artificial Intelligence (Al) significantly emphasizes this trend. Insurance companies are grappling with the notion of Al. They are exploring different traditional and novel insurance products that they can …

Like A Good Neighbor, State Courts Are There: The Case For Remanding Covid-19 Business Interruption Actions To State Court, Gabriel L. Johnson

Connecticut Insurance Law Journal

Following the emergence of COVID-19 and resulting civil orders seeking to stop its spread, many businesses filed claims with their insurance providers for “business interruption” coverage, a type of insurance intended to compensate businesses for income lost during a temporary forced closure. When insurance companies roundly denied these claims, many small-business owners filed lawsuits in state courts. Insurance company defendants largely removed these cases to federal courts, and business owner plaintiffs filed to remand back to state court. In one consolidated appeal heard by the Third Circuit, DiAnoia’s Eatery, LLC v. Motorist Mutual Insurance Co., businessowner plaintiffs seeking remand to …

2025 Spring - Clihhr Newsletter, Cardozo Law Institute In Holocaust And Human Rights (Clihhr)

CLIHHR Newsletters

This Spring 2025 issue of the CLIHHR Newsletter highlights the Institute’s work in human rights education, advocacy, and atrocity prevention. It features student fieldwork in Brazil, national recognition at the Clara Barton Humanitarian Law Competition, major public events, faculty scholarship, and international engagement through the United Nations and academic partnerships. The newsletter reflects CLIHHR’s commitment to survivor-centered justice, Indigenous rights, and preparing future human rights practitioners.

A Systems Theory Of Tort Law: Reevaluating The Case Against “Regulation By Litigation”, Timothy D. Lytton

Missouri Law Review

For decades, critics of tort law have argued that lawsuits are a poor substitute for government regulation. These detractors compare the institutional capacities of courts and agencies, and they conclude that litigation is ineffective, inefficient, and illegitimate as an alternative to notice-and-comment rulemaking. In response, this Article asserts that characterizing tort law and administrative regulation as alternatives obscures their interdependence. By using systems theory to model this interdependence, the Article argues that any fair-minded assessment of tort litigation’s contribution to regulatory governance requires understanding it as part of a system. Ignoring the systemic impacts of tort litigation overlooks the subtle …

Gold & Blue Law Edition, Spring 2025, St. Mary's University - San Antonio, Texas

Gold & Blue Law Edition

This is the Spring 2025 edition of Gold & Blue Law Edition which is St. Mary's University's official School of Law publication.

Wildfire Smoke And U.S. Law, Michael B. Gerrard

Faculty Scholarship

Many of the most wicked feedback effects of climate change relate to wildfire smoke. In some places the greenhouse gases poured into the atmosphere by wildfires exceed the reductions achieved by all efforts to fight climate change. At the same time, climate change is a major reason why wildfires are becoming more frequent and intense. Climate change and wildfires feed each other. However, environmental law and climate policy have paid relatively little attention to wildfires. The smoke from these fires — a major cause of illness and death, even thousands of miles from the blazes — is mostly unregulated. Efforts …

Just To Be Safe, Let’S Keep Ignoring What “Arms” Meant In 1791, Jack Thorlin

Dickinson Law Review (2017-Present)

The Supreme Court held in District of Columbia v. Heller and reaffirmed in New York State Rifle & Pistol Ass’n v. Bruen that “arms,” referred to in the Second Amendment, are common weapons useful for lawful purposes. The majority argued that militiamen fought with whatever common weapons they had on hand for civilian purposes, such as self-defense and hunting. Therefore, under Heller, only those weapons are covered by the Second Amendment. However, Heller did little to ground the “self-defense” theory of “arms” in original public meaning or even actual history. Commonality and lawful purpose have proved difficult for lower …

Riding On Horseback To The Moon: Consent Searches In The Age Of Smartphones And Digital Tracking, Jonathan Kerr

Washington and Lee Law Review

In 2014, when the Supreme Court ruled in Riley v. California that police must get a warrant before conducting a search of a cell phone, Chief Justice John Roberts described comparing a search of data on a cell phone to a search of other physical items as “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” A decade later, an overwhelming majority of Americans carry cell phones that contain an ever-expanding set of data showing their habits, routines, and the minutiae of their everyday lives, offering a potential wealth of information to law enforcement …

Navigating The Legal Risk Universities' Healthcare Providers Potentially Face From Medical Decisions Impacting Collegiate Athletes' Future Nil Income While Following The Ncaa's Mental Health Best Practices, Kenneth D. Ferguson

Faculty Works

This Essay is written to address a series of questions encompassing name, image, and likeness (NIL) opportunities available to collegiate athletes in sports where the potential is high for head and other career-ending injuries. Sports performance can produce significant economic value through NIL. Decisions made by team physicians, athletic trainers, or other healthcare professionals may affect a collegiate athlete's potential for financial gains expected through NIL. These physicians, athletic trainers, and other healthcare professionals will have to consider whether they could be held personally liable for health care-related decisions affecting financial gains collegiate athletes could potentially experience from NIL.

Part …

A State Supreme Court Justice’S Take On Delegation And Deference, Justice R. Patrick Dewine

University of Michigan Journal of Law Reform

There’s not a lot of talk about state administrative law. Never mind that much of the administrative law that happens in this country happens at the state level. Or that state regulation affects citizens and businesses in much the same way as federal regulation. As Chief Judge Sutton observes, “[o]ur obsession with federal law inclines us to notice changes in administrative law most of all through decisions of the U.S. Supreme Court, the Hubble Telescope for assessing American law.”

Introduction: The Future Of Agency Independence Symposium Christopher J. Walker, Christopher J. Walker

University of Michigan Journal of Law Reform

On the Friday after the election last November, the student editors and I convened scholars from across the country at the University of Michigan Law School to discuss the future of agency independence. The goal was to center our discussion on the traditional unitary executive debate and then look beyond statutory restrictions on the President’s removal power to explore other contours of agency independence in modern regulatory governance. Those included the role of scientific expertise and politics in agency decisionmaking, the decisional independence of agency adjudicators, and the importance of a professionalized civil service. When we planned the symposium, we …

Big Roadblock, Meet Big Data: Overcoming The Business Judgment Rule Using Directors’ Online Data, Cecilia Brisuda

UC Law Business Journal

No abstract provided.

Algorithmic Bias: Ai And The Challenge Of Modern Employment Practices, Jordan Dailey

UC Law Business Journal

No abstract provided.

From Peeping Toms To Pixel Tracking: Privacy In The Digital Age, Francesca Faugno

UC Law Business Journal

No abstract provided.

The Invention Of The Judicial Administrative State, Marin K. Levy

Michigan Law Review

A review of The Taft Court: Making Law for a Divided Nation, 1921–1930. By Robert C. Post.

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Promises, Promises: Understanding Claims Made In Social Robot Consumer Experiences, Johanna Gunawan, Sarah Elizabeth Gillespie, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Social robots are a class of emerging smart consumer electronics devices that promise sophisticated experiences featuring emotive capabilities, artificial intelligence, conversational interaction, and more. With unique risk factors like emotional attachment, little is known on how social robots communicate these promises to consumers and whether they adequately deliver upon them within their overall product experiences prior to and during user interaction.

Animated by a consumer protection lens, this paper systematically investigates manufacturer claims made for four commercially available social robots, evaluating these claims against the provided user experience and consumer reviews. We find that social robots vary widely in the …

The Lost English Roots Of Notice-And-Comment Rulemaking, Rephael G. Stern

Faculty Scholarship

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth …

On The Meaning Of Discrimination: Anti-Racism Versus Color-Blind Policy, Keith N. Hylton

Faculty Scholarship

Chief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is …

Sexual And Reproductive Health & Rights: Advances And Setbacks, Aziza Ahmed, Alicia Ely Yamin, Sofia Gruskin

Faculty Scholarship

This article first describes shifts in human rights law that have led to improvements in the realization of sexual and reproductive health and rights (SRHR) over the last decade. The article does so, however, with careful attention to the structural factors beyond formal legal mechanisms that may undermine the ability of governments, even with the best of intentions, to fully develop the necessary robust health and justice systems. Second, this article considers two additional factors: the political economy factors that enable or limit the ability of States to realize SRHR, as well as the growing evidence base that supports positive …

The Misuse Of Ratification-Era Sources By Unitary Executive Theorists, Jed Handelsman Shugerman

Faculty Scholarship

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for …

Innovative Mechanisms For Marketing Health Insurance: An Experimental Field Test (Results From Colorado), Wendy Netter Epstein, Christopher Robertson, David Yokum, Hansoo Ko, Kevin Wilson

Faculty Scholarship

We hypothesize that marketing messages using a generosity framing have the potential to draw healthy persons into the insurance pool, thereby improving access and health outcomes and lowering premiums, but without removing choice or requiring substantial government action. The dependent variable for our field experiment is whether or not recipients of the marketing campaigns enroll in health insurance via the participating exchanges or in Medicaid.

Taking Revolution Seriously, Zohra Ahmed

Faculty Scholarship

Every so often, a prison strike will make national news, as it did in 2014, 2016, and 2018. ¹ The media will focus on the atrocious conditions of confinement; the unchecked violence; the wages numerated in pennies; and the state’s indifference to the strikers’ modest demands for food, medical care, and human contact.

Orisanmi Burton’s² book, Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt, urges us to process such reporting with a healthy dose of skepticism. What if prison rebellions were telling us something else, something even more important? What if they were …

The Pathway To And Consequences Of Foster Parent Intervention In Dependency Cases, Gillian Katz Lamon

UC Law Journal

Over the last 50 years, federal child welfare legislation has wrestled with how to reconcile the competing goals of the child welfare system: child protection, family preservation, and permanency. The United States foster care system has evolved alongside transformations in private adoptions. As the prospects for private adoption have dwindled, the pendulum has shifted toward prioritizing child protection. Youth in foster care have suddenly become the private adoption alternative. Most recently, some state courts have granted foster parents standing to intervene in termination of parental rights proceedings. In those cases, foster parents are permitted to battle with natural parents for …

Is There A Librarian In The House? Researching Federal And Virginia State Health Law, Andrew J. Christensen

Library Scholarship

Health law is a complex and diverse practice area, encompassing issues ranging from insurance law and patient privacy to medical malpractice and vaccine law. Researching health law thus entails a combination of primary and secondary resources, statutory and regulatory updates, and often a nuanced or multijurisdictional understanding of healthcare policy. For both career specialists and lawyers who are new to the field, finding accurate, current information on both federal and state-specific health laws is critical.

Luckily, the librarian is in. This guide highlights key resources and practical strategies for effectively researching federal and Virginia health law, tailored to legal practitioners …

Unfinished Liberties, Inevitable Balancing, Sherif Girgis

Journal Articles

From the Article

In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is bound to fail. Though avoidable for many constitutional rights, balancing is inevitable for general liberties like religion, the Second Amendment, and speech. This inevitability arises not from gaps in text or history but from these liberties’ special role.

General liberties are irreducibly open-ended—not reducible …

Against Criminalizing Wage Theft: Lessons From The Antitrafficking Movement, Stephanie Richard

Cardozo Law Review

Criminalizing wage theft is a popular idea. This Article argues that--based on practitioners' experience with human trafficking--workers' rights groups, legislators, and prosecutors should reconsider embracing the criminalization of wage theft as an effective response to preventing this form of abuse. Twenty years of experience with trafficking cases and data show that criminalizing wage theft is likely not only to be ineffective but also to cause further harm to the victims and vulnerable communities who suffer the most from wage theft. A review oflabor trafficking cases and data shows the frequent negative impacts on victims from criminal prosecutions that would be …

The Transition Process Of Syrian Refugee Families Separated By U.S. Immigration Law, Firas Aljijakli

Graduate Theses, Dissertations, and Capstones

Refugees are regarded as one of the most pressing humanitarian issues worldwide due to intricate social, economic, and demographic factors. Changes in U.S. immigration policy across successive administrations, particularly regarding the refugee ban and the duration of the resettlement process, have significantly impacted admission procedures. Consequently, family separations occur during the resettlement process, compelling families to navigate immigration policies while managing the challenges of being apart. This separation from their children greatly affects refugees’ ability to integrate into American society.

The research examines how Syrian refugee families cope with the separation resulting from U. S. immigration law. An important lens …

Four Ways To Deconstruct Regulation And Undermine Democracy In The States, Glen Staszewski

William & Mary Law Review

A few years before the Supreme Court formally overruled Chevron, anti-administrative activists successfully prohibited judicial deference to reasonable exercises of interpretive discretion by regulatory agencies in a handful of receptive states. State governments’ treatment of this issue is likely to generate even more attention in Loper Bright’s wake. This Article presents novel case studies of four different ways in which state governments have prohibited deference to state agencies by state courts: (1) judicial decisions in Mississippi and Ohio, (2) a constitutional amendment proposed by an appointed commission and adopted pursuant to the initiative process in Florida, (3) statutes …