Digital Commons Network^™

Medicalization Of Rural Poverty: Challenges For Access, Elizabeth Weeks

Scholarly Works

This article was prepared for a live conference, on “The Medicalization of Poverty,” held at the University of Illinois College of Law, and a symposium to be published in the Journal of Law, Medicine & Ethics. My piece focuses on a constellation of challenges for health care delivery and access to care in rural areas. Discussions regarding health and poverty often seem to focus on the admittedly persistent and multilayered problems of the urban poor: unemployment, substandard and unaffordable housing, violent crime, nutrition and “food desserts,” recreation and safe outdoor spaces, and under-resourced public schools, to name a few. While …

The Challenge Of The New Preemption, Richard Briffault

Faculty Scholarship

The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including among others firearms, workplace conditions, sanctuary cities, antidiscrimination laws, and environmental and public health regulation. Particularly striking are punitive measures that do not just preempt local measures but also hit local officials or governments with criminal or civil fines, state aid cutoffs, or liability for damages, as well as broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption …

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to …

United States Supreme Court Surveys: 2016 Term. Still Standing After All These Years: Five Decades Of Litigation Under The Fair Housing Act And The Supreme Court Still Can't Say For Sure Who Is Protected, David A. Logan

Roger Williams University Law Review

No abstract provided.

A Twenty-First-Century Olympic And Amateur Sports Act, Dionne L. Koller

All Faculty Scholarship

Recent scandals involving national governing bodies for sport and allegations of athlete abuse have captured media attention. The most recent, focusing on the actions of USA Gymnastics, prompted Congress to propose legislation to require better protections for Olympic Movement athletes. Signed into law on February 14, 2018, the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 designates the United States Center for SafeSport (SafeSport) as the independent organization charged with exercising jurisdiction over the United States Olympic Committee (USOC) and sport national governing bodies to safeguard amateur athletes against all forms of abuse. Congress’s instincts …

Jurisdictional Idealism And Positivism, John F. Preis

Law Faculty Publications

“If I should call a sheep’s tail a leg, how many legs would it have? Four, because calling a tail a leg would not make it so.” This old quip, often attributed to Abraham Lincoln, captures an issue at the heart of the modern law of subject matter jurisdiction. Some believe that there is a Platonic ideal of jurisdiction that cannot be changed by judicial or legislative fiat. Others take a positivist approach and assert that jurisdiction is nothing more than whatever a legislature says it is. Who is right?

Neither and both. Although neither idealism nor positivism is the …

Who Benefits From Repealing Tampon Taxes? Empirical Evidence From New Jersey, Christopher A. Cotropia

Law Faculty Publications

Many state and local governments exclude some medical products from the sales tax base, including some that are primarily used by men such as hair growth products. However, tampons and other menstrual hygiene products are subject to sales taxes in most states. A recent social movement advocates for the repeal of these “tampon taxes” and several class action lawsuits have been filed against states citing equal protection violations. In this article, we use the 2005 elimination of menstrual hygiene products from the sales tax base in New Jersey as a natural experiment to study who benefits from the repeal of …

Reforming Regulation Of Multi-Level Marketing In Myanmar, Zeyar Nyunt Oo

Chulalongkorn University Theses and Dissertations (Chula ETD)

The business of multi-level marketing is prohibited in Myanmar under the Notification no 46/2018. There are not only three paragraphs but also lack of the definition of MLM in this Notification. If distributors sell any product through MLM in Myanmar, they will be punished with imprisonment for a term exceeding three years under section 5 of the Myanmar Essential Goods and Services Law 2012. The study of the provisions on the business of MLM in selected ASEAN countries, Indonesia, Malaysia, Thailand, and Singapore indicates that the definition of multi-level marketing and pyramid scheme is not the same. Moreover, businessman and …

Insubstantial Burdens, Chad Flanders

All Faculty Scholarship

In order to win a claim under the Religious Freedom Restoration Act (or “RFRA”), you have to show that your religious beliefs have been “substantially burdened” by a governmental law or practice. In her dissent to Hobby Lobby, Justice Ginsburg accused the majority of taking an approach to defining “substantial burden” that abdicated the judicial role in determining what a substantial burden was. In her dissent to the denial of cert in the Wheaton case, Sotomayor advanced the same line. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she …

Through The Smoke: Do Current Civil Liability Laws Address The Unique Issues Presented By The Recreational Marijuana Industry?, Thomas Stufano

Touro Law Review

No abstract provided.

Data Pollution, Omri Ben-Shahar

Coase-Sandor Institute for Law & Economics Research Paper Series

Digital information is the fuel of the new economy.But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework—data pollution— to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view—that the injuries from digital data enterprise are exclusively private. That view has led lawmakers to focus solely …

The Body Politic: Federalism As Feminism In Health Reform, Elizabeth Mccuskey

Faculty Scholarship

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act's federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting-from a feminist perspective-scholars' arguments that equity in health insurance is essential for human …

A Dream Still Deferred: The Unlawful Use Of Student Fees For Instructional Technology In An Alabama Public School Causing A Disparate Impact For Minority Children, Taurus Myhand

Scholarly Works

In framing the United States Constitution, the public education mandate was reserved for the states to strengthen, not weaken, the efforts of the governments to provide an education for the people. However, there are far too many instances where equal access to educational opportunities is still a dream deferred for many racial and ethnic minority children that are enrolled in public school systems throughout the United States. That is particularly the case for racial and ethnic minority students at one public school system in Alabama. This Note explores the constitutional issues raised by Pike Road School System’s use of mandatory …

Editing Nature: Reconceptualizing Biotechnology Governance, Jonas J. Monast

Faculty Publications

No abstract provided.

Healthbanc International, Llc, A New Hampshire Limited Liability Company, Bernard Feldman, An Individual, Plaintiffs, V. Synergy Worldwide, Inc., A Utah Corporation, And Nature's Sunshine Products, Incorporated, A Utah Corporation, Defendants. : Brief, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On certified question of law from the United States District Court for the District of
Utah, Honorable Jill N. Parrish, Case No. 2:16-cv-00135

A Proposal For Fda Label Regulations And Uniform Certifications For Organic Non-Food And "Natural" Products, Allyson Bartolomeo

Barry Law Review

No abstract provided.

A Hell Of A Complex: The Miscarriages Of The Federal Hydropower Licensing Regime, Derek Red Arrow Frank

American Indian Law Journal

What you are about to read is an illustration of systemic racism. Systemic racism is the current effects of statutes and policies developed through a singular and racially-charged narrative. The current hydropower relicensing regime fails to acknowledge the overarching Treaty-reserved rights of American Indian tribes while statutorily granting state and federal authorities the power to prescribe mandatory conditions on hydropower projects. This fact remains constant whether the hydropower project is within or outside a tribe’s reservation or aboriginal territory. Specifically, the Hells Canyon Complex, which rests along the Snake River, has had and continues to have enormous impacts on fisheries …

Subdelegating Powers, Jennifer Nou

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Safeguarding The Future Of Bangladeshi Children: The Need For A Comprehensive National Educational System, Samantha A. Barach

Brooklyn Journal of International Law

The United Nations Convention on the Rights of the Child (CRC)—the human rights treaty ratified by the most States Parties—is binding international law which enumerates the rights guaranteed to all children worldwide. Despite the widespread ratification of the CRC, many countries lack the proper legislation and agencies to ensure that these rights are afforded to all children. One such country is Bangladesh. A relatively new country, Bangladesh gained its independence in 1971 and was one of the first twenty countries to ratify the CRC. Notwithstanding this eagerness to promote children’s rights, Bangladeshi children suffer from a high level of abuse …

26 Usc Section 280e: Will The Dragon Now Be Slayed?, Bill Greenberg, Rebecca Greenberg

Journal of Law and Policy

26 USC § 280E of the Internal Revenue Code (“§ 280E”) prohibits the deduction of ordinary business expenses for businesses deemed by the federal government to be drug traffickers as defined by the Controlled Substances Act (“CSA”). The tax enactment is specifically designed to serve as a disincentive to socalled drug traffickers who might otherwise deduct “ordinary and necessary business expenses” from their taxes. However, this harms legitimate cannabis businesses by promoting unintended consequences, such as under-reported income. For three decades, there has been a patent incongruity between § 280E’s congressional purpose and the expansion of state-legalized cannabis businesses in …

Interpreting Contracts Via Surveys And Experiments, Lior Strahilevitz, Omri Ben-Shahar

Articles

No abstract provided.

Fda Regulation Of Mhealth And Wellness Devices: What You Need To Know, Barbara Zabawa

Faculty Works

The integration of mobile health (mHealth) technologies into wellness and healthcare practices presents both opportunities and regulatory challenges. This article explores the role of the U.S. Food and Drug Administration (FDA) in regulating mHealth and wellness devices, particularly as technological advancements blur the lines between general wellness tools and medical devices. It examines the FDA's framework under the Food, Drug, and Cosmetic Act (FDCA) for classifying and overseeing devices based on intended use and associated risks, including the distinctions between medical devices and low-risk wellness products. Guidance documents for mobile medical applications and low-risk wellness devices are analyzed, highlighting their …

The Blight Of The Bumblebee: How Federal Conversation Efforts And Pesticide Regulations Inadequately Protect Invertebrate Pollinators From Pesticide Toxicity, Emily Helmick

Journal of Food Law & Policy

This article explores the Endangered Species Act's conservation efforts towards the Rusty-Patched Bumblebee as a case study that highlights the gaps in protections afforded to invertebrate pollinators. It focuses on how the law does not adequately protect endangered invertebrate pollinators from inadvertent pesticide poisoning and introduces the threat that this poses to our food system.

Revisiting The Rationality Assumption Of Disclosure Laws: An Empirical Analysis, Uri Benoliel, Jenny Buchan, Tony Gutentag

Hofstra Law Review

Disclosure laws are based on one central assumption: that disclosees are, by their very nature, rational actors. This article questions the validity of this theoretical assumption. The article empirically shows that franchisees, who are considered sophisticated disclosees, are unrealistically optimistic about disclosed risks. In this empirical study, franchisees (N = 205) completed an online research questionnaire, in which they compared their own chances of experiencing disclosed risks with the chances of their colleagues. It was found that franchisees were optimistically biased. Franchisees believed that the chances that their franchisor might opportunistically terminate their franchise are significantly lower than that of …

Homeless, Hungry, And Targeted: A Look At The Validity Of Food-Sharing Restrictions In The United States, Samantha Holloway

Hofstra Law Review

No abstract provided.

Welfare And Federalism's Peril, Andrew Hammond

Washington Law Review

Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF)—the TANF block grant—guaranteed the program’s deterioration. The Article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved programs. …

Dignity Denied: Religious Exemptions And Lgbt Elder Services, Movement Advancement Project (Map), Public Rights/Private Conscience Project, Sage - Advocacy Services For Lgbt Elders

Center for Gender & Sexuality Law

LGBT older adults, like many older Americans in the United States, rely on a network of service providers as they age–for community programming and congregate meals, for health care, and for housing ranging from independent living to skilled nursing. Research finds that a majority of these services are offered by religiously affiliated organizations.

While many of these religiously affiliated facilities provide quality care for millions of older adults, there is a coordinated effort to pass religious exemption laws, issue executive orders and agency guidance, and to litigate court cases to allow individuals, businesses, and even government contractors and grantees to …

Food Law & Policy: An Essential Part Of Today's Legal Academy, Emily M. Broad Leib, Baylen J. Linnekin

Journal of Food Law & Policy

This Article updates the authors’ seminal 2014 Wisconsin Law Review article, "Food Law & Policy: The Fertile Field’s Origins and First Decade," which was the first scholarly work to detail the fascinating origins and explosive growth of the legal field of Food Law & Policy. Using the same ten criteria the authors developed to measure the growth of Food Law & Policy for the 2014 article, this Article measures and details the field’s impressive growth since that time.

Journal Of Food Law & Policy - Fall 2017, Journal Editors

Journal of Food Law & Policy

No abstract provided.

The Fda's Guidance On Dietary Supplement Naming And The Emperor's New Clothes, Neal D. Fortin

Journal of Food Law & Policy

In 2016 the FDA revised the agency’s guidance on dietary supplement labeling. This modification permits the term “dietary supplement” be the entire statement of identity for a dietary supplement. This is an error in the interpretation of the plain language of the Food, Drug, and Cosmetic Act, the plain language of 21 C.F.R. § 101.3(g); and does not comport with numerous rules of statutory interpretation. Moreover, this change violates the Administrative Procedures Act and the FDA’s rules on notice and comment. This change is a disguised rescission of 21 C.F.R. § 101.3(g) without a proper opportunity for the public to …