Digital Commons Network^™

Future Sex, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Local Constitutions, Nestor M. Davidson

Faculty Scholarship

Municipal charters are the forgotten constitutions of our federal system. Scholars generally understand our democracy to be governed by federal and state constitutions, but there is a third, almost entirely ignored realm of constitutional law and practice that lives at the local-government level, embodied in the charters that govern cities, counties, and towns. Engaging these foundational documents is critical. In an era of political gridlock and national polarization, with cities and other local governments increasingly grappling with policy concerns once considered state, federal, or even international responsibilities, the legal institutions that govern local democracy merit newfound scrutiny.

Although municipal charters …

"And They Took My Milk!", I. Bennett Capers

Faculty Scholarship

No abstract provided.

Takings Localism, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and genderneutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

Macromedical Regulation, Barak D. Richman, Steven L. Schwarcz

Faculty Scholarship

The COVID-19 pandemic has dramatically shown that a localized disease can be transmitted to the broader population, nationally and worldwide. This Article analyzes how to design regulation to help control that transmission. To that end, we first observe that existing healthcare regulation focuses almost exclusively on regulating individual components of the medical and healthcare industry, while lacking a capacity to address how those components work together as a system -a system that pandemics can destabilize. Indeed, one factor that contributed to COVID-19's spread was the inability of U.S. healthcare regulation to operate on a societal level, to protect certain components …

Industrial Policy And Local Content Rules In Us Energy Policy, Zachary Sturman, Timothy Meyer

Faculty Scholarship

The United States (US) has a long history of using local content requirements (LCRs) – laws, regulations, or governmental measures that condition a benefit, often financial support, on the use of a certain percentage of inputs from the local jurisdiction – to promote the development of favored domestic industries. The energy sector, as well as related infrastructure industries, have been no exception. Historically, the US has used LCRs and similar measures to promote the development of fossil fuel industries. More recent interest by policymakers in the US have spurred the use of local content rules tied to pipeline construction, as …

South Atlantic Mpas And Oculina Hapc: Characterization Of Benthic Habitat And Biota., Stacey Harter, John K. Reed, Andrew David, Stephanie Farrington, Harbor Branch Oceanographic Institute

Faculty Scholarship

A 14-day research cruise was conducted May 30 to June 12, 2021 by NOAA National Marine Fisheries on the NOAA Ship Pisces with the UNCW Mohawk ROV with a pre-cruise Shelter in Place (SIP. Other collaborators involved include: the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute, Florida Atlantic University (HBOI-FAU), and University of North Carolina at Wilmington (UNCW). The South Atlantic Fishery Management Council (SAFMC) established eight deepwater Marine Protected Areas (MPAs) along the outer continental shelf off the southeastern U.S in February 2009 and the Oculina Habitat Area of Particular Concern (OHAPC) …

Transgender Rights & The Eighth Amendment, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo …

Erasing Evidence Of Historic Injustice: The Cannabis Criminal Records Expungement Paradox, Julie E. Steiner

Faculty Scholarship

Cannabis prohibition and its subsequent enforcement have yielded an epic societal tragedy. The decision to criminalize cannabis was a paradigm-shifting moment in legal history because it converted lawful medicinal or intoxicant seeking conduct into criminal activity, inviting government intrusion into matters previously self-controlled.

Scholars increasingly recognize that prohibition was built upon a decades-long, false, media-driven narrative that “marijuana” was one of society’s worst menacing enemies. Using overtly racist propaganda, the narrative successfully captured the audience, fomenting public anxiety and unfairly demonizing cannabis and its users. This misinformation campaign ultimately led to its current status as prohibited under the federal Controlled …

Family Law—The Revictimization Of Survivors Of Domestic Violence And Their Children: The Heartbreaking Unintended Consequence Of Separating Children From Their Abused Parent, Jeanne Kaiser, Caroline M. Foley

Faculty Scholarship

Massachusetts law governing child custody recognizes the damaging effect that witnessing domestic violence can have on a child. Accordingly, the law requires courts to give special attention to the effects of domestic violence on a child when determining custody. An unintended consequence of this scrutiny is that parents who have been the victims of domestic violence can lose custody, or even their parental rights, for failing to protect children from witnessing their abuse. This result can be prevented by requiring courts to apply the same level of attention to the effects of domestic violence when removing a child from an …

Reimagining Schools’ Role Outside The Family Regulation System, Brianna Harvey, Joshua Gupta-Kagan, Christopher Church

Faculty Scholarship

The United States’ family regulation system often begins with well-intentioned professionals making child protection hotline calls, jeopardizing their own ability to work with families and subjecting the families to surveillance. By the system’s own standards, most of this surveillance leads to no meaningful action. Nowhere is this reality more present than in schools. Educational personnel serve as the leading driver of child maltreatment allegations, yet decades worth of data reveal educator reports of maltreatment are the least likely to be screened-in and the least likely to be substantiated or confirmed. In other words, education personnel — whether motivated by genuine …

Private Facilitators Of Public Regulation: A Study Of The Environmental Consulting Industry, Dave Owen

Faculty Scholarship

Most accounts of businesses and regulators depict adversarial relationships. In these accounts, businesses typically seek to avoid or limit public regulation or, alternatively, to distort it so it serves private rather than public ends. This article uses a study of the environmental consulting industry to explore a different set of relationships between businesses and public regula- tion. These consultants generally work for for-profit companies, and they serve as regulatory intermediaries between busi- nesses and government. Those dual roles raise concerns that environmental consultants, like many other businesses, will seek to subvert regulatory schemes or will serve as instruments of regulatory …

Law, Land Use, And Groundwater Recharge, Dave Owen

Faculty Scholarship

Groundwater is one of the world’s most important natural resources, and its importance will increase as climate change continues and the human population grows. But groundwater management has traditionally been governed by lax and uneven legal regimes. To the extent those regimes exist, they tend to focus on the extraction of groundwater rather than the processes—referred to as groundwater recharge—through which water enters the subsurface. Yet groundwater recharge is crucially important to the maintenance of groundwater supplies, and it is also highly susceptible to human influences, particularly through our pervasive manipulation of land uses. This Article discusses the underdeveloped law …

Wilderness Law In The Anthropocene: Purism Or Pragmatism, Phillipa C. Mccormack, Benjamin J. Richardson, David Takacs, Kees Bastmeijer

Faculty Scholarship

Wilderness is vanishing. Despite explicit legislative protection of wilderness values for over half a century, rapid environmental degradation worldwide in recent decades has severely diminished the extent and quality of terrestrial and marine wilderness to the point where we must reassess the fundamental premises and future of wilderness law. With increased human demands on the natural world, and with climate breakdown looming, the very notion of “wilderness” itself may one day be considered meaningless or irrelevant. We examine legal developments in the United States, Australia, and Europe to critically evaluate the state of wilderness law. In this Anthropocene era, when …

We Are The River, David Takacs

Faculty Scholarship

The New Zealand Parliament has recently granted the Whanganui River and the Te Urewera mountain ecosystem rights as legal persons, with a Māori governing board to speak for the nonhuman entities, based upon traditional cultural precepts. Far from an isolated precedent, in what the U.N. Secretary General calls “the fastest growing legal movement of the twenty-first century,” legislatures, courts, or voters in Australia, Colombia, Ecuador, Bangladesh, India, Uganda, and the U.S. have also declared that rivers and other living systems have legal rights. This Article chronicles the movement to grant nonhuman entities legal rights. I analyze the statutes and judicial …

Covid-19 Antibody Testing As A Precondition For Employment: Ethical And Legal Considerations, Sara Gerke, Gali Katznelson, Dorit R. Reiss, Carmel Shachar

Faculty Scholarship

Employers and governments are interested in the use of serological (antibody) testing to allow people to return to work before there is a vaccine for SARS-CoV-2. We articulate the preconditions needed for the implementation of antibody testing, including the role of the U.S. Food & Drug Administration.

Covid-19 And Regulating Vaccines, Dorit R. Reiss

Faculty Scholarship

No abstract provided.

Employer-Mandated Vaccination For Covid-19, Mark A. Rothstein, Wendy E. Parmet, Dorit R. Reiss

Faculty Scholarship

No abstract provided.

Government Activism In Bankruptcy, Jared A. Ellias, George Triantis

Faculty Scholarship

It is widely recognized that bankruptcy law can stymie regulatory enforcement and present challenges for governments when regulated businesses file for Chapter 11. It is less-widely understood that bankruptcy law can present governments with opportunities to advance policy goals if they are willing to adopt tactics traditionally associated with activist investors, a strategy we call “government bankruptcy activism.” The bankruptcy filings by Chrysler and General Motors in 2009 are a famous example: the government of the United States used the bankruptcy process to help both auto manufacturers resolve their financial distress while promoting the policy objectives of protecting union workers …

Fedaccounts: Digital Dollars, John Crawford, Lev Menand, Morgan Ricks

Faculty Scholarship

We are entering a new monetary era. Central banks around the world— spurred by the development of privately controlled digital currencies as well as competition from other central banks—have been studying, building, and, in some cases, issuing central bank digital currency (“CBDC”). Although digital fiat currency is one of the hottest topics in macroeconomics and central banking today, the discussion has largely overlooked the most straightforward and appealing strategy for implementing a U.S. dollar-based CBDC: expanding access to bank accounts that the Federal Reserve already offers to a small, favored set of clients. These accounts consist of entries in a …

Virtual Reality: Prospective Catalyst For Restorative Justice, Kate Bloch

Faculty Scholarship

A 2018 U.S. Department of Justice report assessing data from thirty states found that eighty-three percent of those individuals released from state prisons in 2005 were rearrested within nine years.** When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention. In countries around the world, restorative justice has been emerging as a promising candidate. It generally involves an interactive process in which stakeholders identify and grapple with harms caused by the crime. But many environments lack the resources to invoke its benefits. While restorative justice takes various …

The Devil In The Tiers, Robin C. Feldman

Faculty Scholarship

Prescription drug spending in the USA has soared, fueled by rising drug prices. A critical mechanism for restraining drug prices is the formulary tiering system. Although tiering should reflect the cost of a drug—and reward patients who choose less-expensive drugs—something is seriously amiss. Using Medicare claims data from roughly one million patients between 2010 and 2017, this article finds troubling amounts of distorted tiering and wasted cost. Increasingly, generics are shifted to more expensive—and therefore less accessible—tiers. The percentage of generics on the leastexpensive tier drops from 73% to 28%; the percentage of drugs on inappropriate tiers rises from 47% …

Physicians Treating Alzheimer’S Disease Patients Should Be Aware That Televised Direct-To-Consumer Advertising Links More Strongly To Drug Utilization In Older Patients, Robin C. Feldman

Faculty Scholarship

Background: US direct-to-consumer advertising spending for medicine has soared in recent decades. Advertising has been shown to impact drug utilization. Most Alzheimer’s disease patients are above age 65 and may take a range of prescription medications for various disease states. Objective: To investigate how direct-to-consumer advertising is associated with the drug utilization of patients ≥ 65 years old. Methods: Using advertising expenditure data and Medicare Part D drug purchase claims, we performed regression analyses for each of the highest-spending drugs and age group, with cumulative monthly spending as the predictor variable and drug utilization as the response variable. For each …

Negative Innovation: When Patents Are Bad For Patients, Robin C. Feldman, David A. Hyman, W. Nicholson Price Ii, Mark J. Ratain

Faculty Scholarship

Incentives in patent law have driven innovation into spaces that are affirmatively harmful to patients, and patentees are discouraged from taking steps to improve the product so as to prevent adverse health outcomes.

Differential Etiology: Inferring Specific Causation In The Law From Group Data In Science, Joseph Sanders, David L. Faigman, Peter B. Imrey, Philip Dawid

Faculty Scholarship

In every toxic-tort case, the plaintiff must prove that the defendant exposed the plaintiff to something that caused an injury. The causal proof is in two parts: proof of general causation and proof of specific causation. General causation addresses the question of whether the exposure can cause injury in anyone. In the area of toxic torts, the evidence available to answer this question comes in the form of groupbasedstudies in the fields of toxicology, epidemiology, and genetics—studies that search for the effects of causes. Proof of general causation, however, is not enough. Because court cases focus on the individual, the …

States’ Merger Review Authority Is Associated With States Challenging Hospital Mergers, But Prices Continue To Increase, Brent D. Fulton, Jaime S. King, Daniel R. Arnold, Alexandra D. Montague, Samuel M. Chang, Thomas L. Greaney, Richard M. Scheffler

Faculty Scholarship

States can challenge proposed hospital mergers by using antitrust laws to prevent anticompetitive harms. This observational study examined additional state laws—principally charitable trust, nonprofit corporation, health and safety, and certificate-of-need laws—that can serve as complements and substitutes for antitrust laws by empowering states to be notified of, review, and challenge proposed hospital mergers through administrative processes. During the period 2010–19, 862 hospital mergers were proposed, but only forty-two (4.9 percent) were challenged by states, including thirty-five by states without federal involvement, of which twenty-five (71.4 percent) originated in the eight states with the most robust merger review authority. The twenty-five …

Covid-19 Vaccine Uptake Through The Lived Experiences Of Health Care Personnel: Policy And Legal Considerations, Rachel Gur-Arie, Zackary Berger, Dorit Rubinstein Reiss

Faculty Scholarship

Purpose: To investigate whether coronavirus disease 2019 (COVID-19) vaccination campaigns targeted at health care personnel (HCP) in the United States have addressed the lived experiences of HCP on the frontlines of the COVID-19 pandemic and to analyze policy and legal considerations for improving COVID-19 vaccine uptake among HCP. Methods: We conducted a literature and policy review to explore the lived experiences of different occupational groups of HCP on the frontlines of the COVID-19 pandemic—physicians, nurses, trainees, and nonclinical essential workers—in relation to ongoing COVID-19 vaccination campaigns. Finally, we discuss policy and legal considerations to improve the state of HCP COVID-19 …

More Than A Mask: Stay-At-Home Orders And Religious Freedom, Dorit Rubinstein Reiss, Madeline Thomas

Faculty Scholarship

No abstract provided.

A Longitudinal Workplace-Based Interprofessional Curriculum For Graduate Learners In A Geriatrics Patient-Centered Medical Home, Pei Chen, Mackenzie Clark, Michele Sherma, Yvonne Troya, Irena Cenzer, Josette Rivera

Faculty Scholarship

Current health professions training programs offer limited longitudinal opportunities in geriatrics and interprofessional collaborative practice (IPCP); these longitudinal opportunities are necessary for a workforce capable of caring for an aging population with complex care needs. We designed a year-long, workplace-based curriculum incorporating interprofessional (IP) preceptorships and formal conferences in which graduate learners from geriatric medicine, pharmacy, social work, and law formed a learners’ team, learned about IPCP, and cared for older adults in an academic geriatrics patient-centered medical home. Our curricular objectives were to 1) improve IP collaborative competencies, 2) improve perceived teamness (defined as having core IP qualities of …

Making Immigration Law Respond To The Needs Of Building U.S. Leadership In Artificial Intelligence, Richad A. Boswell, Aditya Mohan

Faculty Scholarship

No abstract provided.