Digital Commons Network^™

The Means And Ends Of Wellness Programs, Laura D. Hermer

Faculty Scholarship

How far should we go in assigning individuals causal responsibility for their own health status and what should the implications of any such assignment be?

Few would deny that most adults have a major role in achieving and maintaining their own health. However, it is not at all clear where one should draw the line between what is freely chosen and what is determined by forces outside a person’s control. Medical care plays only a small role in most people’s overall health, and often social, environmental, and personal factors are far more important. Incentivizing an individual to take better care …

Does A Rising Tide Lift All Boats? Sea Level Rise, Land Use, And Property Rights, Laura M. Padilla

Faculty Scholarship

This Article considers the competing interests of landowners, governments, and academics; Part I describes the problem-sea level rise and its projected acceleration. Part II details sea level rise physical and economic impacts. Part III discusses a range of adaptation responses to the problem, and Part IV explores the sea level rise-adaptation strategies' potential legal challenges. This Article focuses on California, but the problems, solutions, and challenges pervade coastal communities everywhere.

Response To: A Telehealth Explosion: Using Lessons From The Pandemic To Shape The Future Of Telehealth Regulation, Joanna K. Sax

Faculty Scholarship

In A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation, published in the Texas A&M Law Review, Professor Deborah Farringer tackles the critical issue of the efficacy and implementation of telehealth, using our experience(s) of telehealth during the COVID–19 pandemic as the guide. This is important, as Professor Farringer acknowledges, because while telehealth advocates pre-date the pandemic, barriers prevented the implementation of telehealth in a widespread manner. These barriers included a concern about fraud and a question as to whether telehealth visits could provide effective outcomes compared to in-person visits. Professor Farringer …

Preserving The Fruits Of Labor: Impediments To University Inventor Mobility, Brenda M. Simon

Faculty Scholarship

Academic inventors must overcome numerous obstacles when they seek to leave their parent universities. The results of their work are often intertwined in what I call "innovation-essential components," which are important aspects of the. innovative process that create strong ties to the parent university, such as data, patents, trade secrets, grants, contracts, materials, and other agreements and restrictions. Innovation-essential components effectively bind university inventors to their parent institutions, making departure unworkable without the university's approval. Universities sometimes further complicate inventor mobility by entering into unlawful agreements with other academic institutions in their efforts to prevent inventor movement or by engaging …

Law Enforcement’S Lochner, Miriam H. Baer

Faculty Scholarship

Long-established rules of constitutional criminal procedure empower the government to cheaply and efficiently demand information from businesses and corporations, even when those entities are themselves targets of criminal investigations. These rules have become extremely valuable to government investigators, notwithstanding their contestable premises and wide-ranging effects on employees, owners, and consumers.

This ease of access era, however, may be nearing its end. A convergence of changes in how the Supreme Court views Fourth Amendment privacy rights on the one hand, and how it conceptualizes corporate personhood on the other, is apt to trigger an erosion of government enforcement power. At the …

Characterization Of The Mesophotic Coral Reefs In The Florida Keys National Marine Sanctuary., John K. Reed, Stephanie Farrington, Harbor Branch Oceanographic Institute, Dennis M. Hanisak, Shirley A. Pomponi

Faculty Scholarship

A 17-day research cruise was conducted to the Florida Keys National Marine Sanctuary (FKNMS), August 12-29, 2019 by the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute, Florida Atlantic University (HBOI-FAU) aboard the University of Miami ship R/V F.G. Walton Smith. Two legs of the expedition were conducted. Leg 1 (August 13-20, 2019) consisted of Mohawk remotely operated vehicle (ROV) dives with the primary objective to document and characterize the benthic habitats, benthic communities, and fish assemblages of the mesophotic (30-100 m) coral ecosystems and deep rariphotic (>100 m) zones within and …

Clearing Opacity Through Machine Learning, Arti K. Rai, W. Nicholson Price Ii

Faculty Scholarship

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

But these machine-learning tools are often as opaque as the underlying systems, whether because they are complex, nonintuitive, deliberately kept secret, or a synergistic combination of those three factors. A burgeoning literature addresses challenges arising from the opacity of machine-learning systems. This literature has largely focused on …

Second Amendment Animus, Jacob D. Charles

Faculty Scholarship

The Supreme Court’s animus doctrine has proven surprisingly adaptive. The Court has employed the doctrine not just in the typical equal protection context from which it arose, but also to claims that religious conduct or beliefs are the target of legislative hostility. Animus law and scholarship are flourishing after several invocations of the doctrine in the high Court’s recent Terms. Coinciding with these developments, gun-rights advocates and other supporters have increasingly railed against the hostility with which they believe government officials are treating the Second Amendment. This Essay connects these developments, mapping three types of gun-supporter claims that sound in …

Covid-19 Vaccine Mandates For University Students, Dorit Rubenstein Reiss, John Dipaolo

Faculty Scholarship

Universities and colleges (“universities”) reopening after COVID-19 understandably seek to increase safety on campus and reduce the risk of a COVID-19 outbreak. One approach universities and colleges are considering is requiring vaccines from students. This Article addresses the legal framework behind university vaccine mandates for students. It sets out the general constitutional framework and explains why universities are constitutionally permitted to impose reasonable vaccine mandates. It addresses whether universities need to offer a religious exemption, explaining that under current Supreme Court jurisprudence, universities are likely not required to offer a religious exemption, but that may change, and public universities in …

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Interpreting By The Rules, Rebecca Kysar

Faculty Scholarship

A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as reliable heuristics to that end. This Article starts from that premise but will add wrinkles to it. The complications stem from the fact that each rule is adopted for distinct reasons and is applied differently across contexts. As investigation into these particularities proceeds, it becomes apparent …

Beyond Emissions: Migration, Prisons, And The Green New Deal, Wyatt Sassman, Danielle C. Jefferis

Faculty Scholarship

The Green New Deal is a bold resolution that asks us to envision climate policy beyond emissions reductions and pollution controls. The proposal seeks to reduce environmental impacts, including by dramatically reducing carbon emissions, while supporting domestic manufacturing, unionized labor, sustainable agriculture, and social equity. The Biden Administration has expressed support for the Green New Deal as “a crucial framework for meeting the climate challenges we face,” and the proposal has influenced the Administration’s early actions to reduce carbon emissions. How can the Green New Deal’s framework guide climate policy beyond emissions reductions, and who should be a part of …

Skirting The Law: Medicaid Block Grants And Per-Capita Caps In A Pandemic, Laura D. Hermer

Faculty Scholarship

To what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’ s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding …

Mitchell Hamline School Of Law Summer 2020 Covid-19 Legal Response Clinic, Natalie Netzel, Ana Pottratz Acosta, Joanna Woolman, Kate Kruse, Jon Geffen

Faculty Scholarship

This essay is a reflection on lawyering in a time of crisis. It details the Mitchell Hamline School of Law Clinical Faculty’s response to the community needs resulting from the COVID-19 pandemic by creating the COVID-19 Legal Response Clinic. It also recounts the impact of the murder of George Floyd and the long overdue national reckoning with systemic racism, sparked in our city. Additionally, against this backdrop, it examines the trauma-informed approach taken in clinical work and the classroom to help students process their own trauma and apply this approach in their work with clients.

Amid these concurrent crises in …

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

Destruction Of Cultural Heritage As A Violation Of Human Rights: Application Of The Alien Tort Statute, Emily T. Behzadi

Faculty Scholarship

In recent years, armed conflicts around the world have occasioned widespread destruction of cultural heritage sites. From the demolition of Palmyra in the Syrian Arab Republic to the destruction of Sufri Shrines in Mali, the intentional despoliation of these important cultural heritage sites is not only an uncontroverted violation of international law but a form of cultural genocide. The destruction of cultural heritage profoundly impacts citizenry on a local, national, and global level. Cultural heritage is an expression of fundamental and universally recognized human rights, including rights to freedom of expression, freedom of thought, freedom of conscience and religion, and …

Bostock V. Clayton County And The Problem Of Bisexual Erasure, Nancy C. Marcus

Faculty Scholarship

No abstract provided.

The Information Shortfalls Of Prosecuting Irresponsible Executives, Miriam H. Baer

Faculty Scholarship

This Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which …

'Act Normal Or Leave': When Law And Culture Collide, Heidi R. Gilchrist

Faculty Scholarship

No abstract provided.

Regents: Resurrecting Animus/Renewing Discriminatory Intent, William Araiza

Faculty Scholarship

No abstract provided.

Conscience Leave, Andrew K. Jennings

Faculty Scholarship

No abstract provided.

Fintech And Race-Based Inequality In The Home Mortgage And Auto Financing Markets, Winnie F. Taylor

Faculty Scholarship

No abstract provided.

Are You There, Law? It's Me, Semen, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Professionalization Of Compliance: Its Progress, Impediments, And Outcomes, James A. Fanto

Faculty Scholarship

No abstract provided.

Menstruation: An Ableist Narrative, Prianka Nair

Faculty Scholarship

No abstract provided.

Who Should Police Politicization Of The Doj?, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Is Economic Nationalism In Corporate Governance Always A Threat?, Martin Gelter

Faculty Scholarship

During the past decades, corporate law and corporate governance debates have generally been skeptical of elements of economic ‘Nationalism’ or ‘protectionism.’ Arguably, globalization and convergence in corporate governance have resulted in a reduction of protectionist policies. However, recently COVID-19 has resulted in nationalist and protectionist conduct in economic policy across jurisdictions. Contrary to the predominant view, this paper argues that corporate governance policies intended to serve a particular country’s interest may at times be justified. First, globalization and convergence in corporate governance are likely to have beneficial effects only when outside investors pursue financial rather than political goals. Protectionist policies …

Crisis And Cultural Evolution: Steering The Next Normal From Self-Interest To Concern And Fairness, Robert A. Bohrer

Faculty Scholarship

This essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just …

Ashes To Ashes: A Way Home For Climate Change Survivors, Kenneth S. Klein

Faculty Scholarship

In 2020, the United States suffered a record number of named storms, a record number of storms causing $1 billion or more in damage, a derecho that destroyed much of Iowa’s corn crop, and previously unheard-of levels of wildfire frequency and damage in California, Oregon, and Washington. The effects of climate change are causing a crisis of affordable, available homeowner insurance. As more and more homes in the United States are in high-risk areas for natural catastrophes, insurers increasingly choose not to offer insurance at all in some communities, exclude disaster risks from coverage in others, and dramatically raise prices …

Covid-19 And The Caregiving Crisis: The Rights Of Our Nation's Social Safety Net And A Doorway To Reform, Leanne Fuith, Susan Trombley

Faculty Scholarship

In March 2020, the United States declared a pandemic due to the global Covid-19 virus. Across the nation and within a matter of days, workplaces, schools, childcare, and eldercare facilities shuttered. People retreated to their homes to shelter-in-place and slow the spread of the virus for what would become a much longer time than most initially anticipated. Now, more than a year into the pandemic, many professional and personal lives have been upended and become inextricably intertwined. Work is now home, and home is now work. Work is completed at all times of day and well into the night. Children …