Digital Commons Network^™

Underneath Her Pantsuit: A Reflection On Hanna Rosin's The End Of Men, Aziza Ahmed

Faculty Scholarship

In her book, The End of Men, ¹ Hanna Rosin argues that women have “surpassed” men. This new reality necessitates a reevaluation of marriage, family, sex, and gender roles.² To further her claim, Rosin dedicates a chapter of her book to the topic of violence committed by women. She argues that women are becoming more violent³ :

The new [trope] taps into a fear that as they gain more power, women will use violence and their new specialized skills to get what they want. Singular and exotic though these cases may be, they raise the broader unsettling possibility …

“Rugged Vaginas” And “Vulnerable Rectums”: The Sexual Identity, Epidemiology, And Law Of The Global Hiv Epidemic, Aziza Ahmed

Faculty Scholarship

AIDS remains amongst the leading causes of death globally. Identity is the primary mode of understanding HIV and organizing in response to the HIV epidemic. In this Article, I examine how epidemiology and human rights activism co-produce ideas of identity and risk. I call this the "identity/risk narrative ": the commonsense understanding about an identity group's HIV risk. For example, epidemiology offers the biological narrative of risk: anal sex and the weak rectal lining make men who have sex with men more vulnerable to HIV; while the fragility of a woman's vaginal wall provides a biological foundation for women's vulnerability. …

Hunting Stag With Fly Paper: A Hybrid Financial Instrument For Social Enterprise, Dana Brakman Reiser, Steven A. Dean

Faculty Scholarship

Social entrepreneurs and socially motivated investors share a belief in the power of social enterprise: ventures that pursue a "double bottom line" of profit and social good. Unfortunately, they also share a deep mutual suspicion. Recognizing that social ventures-just like traditional for-profit and nonprofit enterprises-need capital to flourish, this Article offers a financing tool to transform that skepticism into commitment. Unlike the array of new entities that have emerged in recent years-including L3Cs, benefit corporations, and flexible purpose corporations-the hybrid financial instrument this Article describes provides a robust and transparent solution to the puzzle that lies at the heart of …

The Paradox Of Legal Equivalents And Scientific Equivalence: Reconciling Patent Law's Doctrine Of Equivalents With The Fda's Bioequivalence Requirement, Janet Freilich

Faculty Scholarship

Contrary to popular perception, generic drugs often enter the market before the patents covering their brand name counterparts have expired by making slight changes to the drug to avoid the brand name patent. These generics face a paradox: the U.S. Food and Drug Administration (FDA) requires that the generic "not show a significant difference" from the reference product, while patent law requires that the generic have "substantial differences" as compared to the reference product. The generic must be bioequivalent, but not legally equivalent, to the brand name drug. This paradox occurs frequently in the courts but has never been discussed …

Motivation Matters: Guideline 10.13 And Other Mechanisms For Preventing Lawyers From Surrendering To Self-Interest In Responding To Allegations Of Ineffective Assistance In Death Penalty Cases, Tigran W. Eldred

Faculty Scholarship

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively …

Night Of The Living Dead Hand: The Individual Mandate And The Zombie Constitution, Gary S. Lawson

Faculty Scholarship

If someone had told me on June 27, 2012, that five Justices of the U.S. Supreme Court were about to hold in National Federation of Independent Business v. Sebelius 1 (NFIB) that the individual mandate provision in the Patient Protection and Affordable Care Act 2 (PPACA) was not constitutionally authorized either by the Commerce Clause or the Necessary and Proper Clause, 3 I would have popped a cork. I don't even drink, but I would have popped the cork on principle just to hear the sound (and also to irritate my colleagues, most of whom revere the PPACA the way …

The Duty To Rescue In Genomic Research, Michael Ulrich

Faculty Scholarship

Applying the duty to rescue to incidental findings in genomic research provides benefits over the ancillary care framework. A rescue model avoids conflating the return of genetic information with providing needed clinical care, it recognizes the ethical duties researchers have toward the research study and offers a mechanism for appropriately balancing these with obligations to individual subjects, and answers definitively that there is no duty to search for incidental findings.

The Split Benefit: The Painless Way To Put Skin Back In The Health Care Game, Christopher Robertson

Faculty Scholarship

This Article proposes a solution to the growth of health care costs, focusing on the sector of expensive, and often unproven, treatments. Political, legal, and market limits prevent insurers or physicians from rationing care or putting downward pressure on prices. Since the insurer bears the cost, the patient is also not sensitive to price, and thus consumes even low-value treatments.

The traditional cost-sharing solution is stymied by the patients’ limited wealth. When treatments can cost $25,000 or more, the median patient cannot be expected to pay a significant portion thereof. Instead, patients often enjoy supplemental insurance or exhaust their cost-sharing …

Guidance From Vaccination Jurisprudence, Michael Ulrich

Faculty Scholarship

The lengthy history of case law covering compulsory vaccination policies state consistently that conscientious exemptions and evaluating their validity can be difficult, administratively cumbersome, and potentially unconstitutional.

Obscurity By Design, Woodrow Hartzog, Frederic D. Stutzman

Faculty Scholarship

Design-based solutions to confront technological privacy threats are becoming popular with regulators. However, these promising solutions have left the full potential of design untapped. With respect to online communication technologies, design-based solutions for privacy remain incomplete because they have yet to successfully address the trickiest aspect of the Internet — social interaction. This Article posits that privacy-protection strategies such as “Privacy by Design” face unique challenges with regard to social software and social technology due to their interactional nature.

This Article proposes that design-based solutions for social technologies benefit from increased attention to user interaction, with a focus on the …

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven Arrigg Koh

Faculty Scholarship

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures—the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence.

This Article identifies this gap in the literature—the prison location omission—and fills it from three different vantage points:

(1) U.S. procedural provisions governing prison designation;

(2) international procedural provisions governing prison designation; and

(3) the relationship between imprisonment and broader theories of criminal punishment.

Through comparison of …

What Is Parenthood?: Contemporary Debates About The Family Introduction, Linda C. Mcclain, Daniel Cere

Faculty Scholarship

Extraordinary changes in patterns of family life – and family law – have dramatically altered the boundaries of parenthood and opened up numerous questions about debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Despite this uncertainty, the intense focus on the definition and future of marriage diverts attention from parenthood. Demographic reports suggesting a shift away from marriage and toward alternative family forms also keep marriage in constant public view, obscuring the fact that disagreements about marriage are often grounded in deeper, conflicting convictions about parenthood. This book (as the posted …

The Public Pension Crisis, Jack M. Beermann

Faculty Scholarship

Unfunded employee pension obligations will present a serious fiscal problem to state and local governments in the not too distant future. This article takes a looks at the causes and potential cures for the public pension mess, mainly through the lens of legal doctrines that limit public employers’ ability to avoid obligations. As far as the causes are concerned, this article examines the political environment within which public pension promises are made and funded, as an attempt to understand how this occurred. The article then turns to ask if states could implement meaningful reforms without violating either state or federal …

Midnight Rules: A Reform Agenda, Jack M. Beermann

Faculty Scholarship

There is a documented increase in the volume of regulatory activity during the last 90 days of presidential administrations. The phenomenon of late-term regulatory activity has been called “Midnight Regulation” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Report, prepared for the Administrative Conference of the United States, looks closely at one species of Midnight Regulation, namely Midnight Rules, promulgated in the last 90 days of an administration. The Report examines the phenomenon and concludes with recommendations adopted by the Administrative Conference of the United States at its …

Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza

Faculty Scholarship

This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …

The Case For Public Pension Reform: Early Evidence From Kentucky, Maria O'Brien

Faculty Scholarship

Kentucky has managed to effect major changes to some of its pension plans in the face of poor funding ratios that threatened to swamp other budget priorities. At this point it is unclear whether the reforms are deep enough to bring the plans funding levels in line with those of “healthy” states like Wisconsin. It is also unclear whether there is the political will in other jurisdictions to curb costs by moving to defined contribution or hybrid cash balance vehicles. Transparency combined with a fear that pension obligations would soon swamp all other state budget priorities appears to have been …

Legal Education At A Crossroads: Innovation, Integration, And Pluralism Required!, Karen Tokarz, Antoinette Sedillo Lopez, Peggy Maisel, Robert Seibel

Faculty Scholarship

Although historically slow to change, law schools are now facing enormous pressure from educators, students, lawyers, judges, clients, and the public to rethink legal education and the lawyer‘s role in society. Now more than ever, there is robust national debate on the threshold contributions law schools should make to the preparation of law graduates for entry into practice. The clamor for reform in legal education is precipitated by a confluence of factors, including new insights about lawyering competencies and experiential legal education; the shifting nature of legal practice in the United States; a decrease in law jobs; changes in the …

Federal Family Policy And Family Values From Clinton To Obama, 1992-2012 And Beyond, Linda C. Mcclain

Faculty Scholarship

This Article traces the evolution of federal family law and policy from 1992-2012 and beyond by considering the legacy of Clintonism, the “Third Way” political philosophy developed by William Jefferson Clinton and the Democratic Leadership Council. Present day economic inequality is spurring reflection on the role of government and on the meaning and form of progressive politics. Clintonism’s centrist, progressive approach linked governmental provision of opportunity to personal responsibility (“working hard and playing by the rules”) and appealed to values of family, community, faith, liberty, and inclusion. By linking family values to family policies, Clintonism’s New Covenant successfully challenged the …

With Liberty And Access For Some: The Aca's Disconnectfor Women's Health, Nicole Huberfeld

Faculty Scholarship

The ACA denies to women the "basic security" of providing insurance for a procedure that statistics show one in three women will need during their reproductive lifetime. On one hand, the access-enhancing elements of the ACA are likely to help women, who earn lower wages, need more medical care, and live longer than men, to gain access to preventive and regular healthcare and to keep the insurance that they have. On the other hand, poor women and women of color will lose ground in access to abortion, because the ACA prevents insurance payment for abortions through both public and private …

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Faculty Scholarship

The anticipated growth of Medicaid under the ACA will likely aggravate an ongoing dispute surrounding private enforcement of the Medicaid Act. The Medicaid Act does not provide a private right of action except when a person who is eligible for Medicaid is denied entry into the program. Nevertheless, historically, both Medicaid providers and beneficiaries have been able to protect their rights through 42 U.S.C. § 1983, which allows individuals to seek redress against states in federal court for violations of statutory or constitutional rights, or through the Supremacy Clause, which prevents states from enacting laws that violate superseding federal laws. …

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Did Legal Education Fail Health Reform? And How Health Law Can Help, Wendy K. Mariner

Faculty Scholarship

Arguments over the constitutionality of the Affordable Care Act illustrate the pervasiveness of health law issues in society. In court, arguments on both sides also demonstrated insufficient knowledge of the health care system and health insurance to identify and present useful arguments. Too many lawyers remained wedded to theories of constitutional law that have become disconnected from twenty-first century realities. Legal education may have something to answer for in this respect. This essay examines how legal education in health law may offer some valuable responses to ongoing critiques of legal education in general. The more law moves away from strict …

The Arab-Israeli Conflict And International Law, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The Arab-Israeli conflict has become the most prominent arena of regional and international tension over the past century. Within the realm of international law, the conflict has contributed greatly to the development of international rule-making. The laws of war, the scope of international humanitarian and human rights law, the rights of refugees, the centrality of self-determination, the laws on terrorism and the content of modern treaty-making -- all have been significantly shaped by the norms established through the copious resolutions, diplomatic statements and legal commentary on the many features of the conflict. Yet, at the same time, the efficacy of …

Language Access Laws And Legal Issues: A Local Official's Guide, David Jung, Noemí O. Gallardo

Faculty Scholarship

No abstract provided.

Representation For The Accused: Haiti's Thirst And A Role For Clinical Legal Education, Kate Bloch

Faculty Scholarship

No abstract provided.

The Daubert Revolution And The Birth Of Modernity Managing Scientific Evidence In The Age Of Science, David L. Faigman

Faculty Scholarship

No abstract provided.

Copyright At The Bedside Should We Stop The Spread?, Robin Cooper Feldman, John Newman

Faculty Scholarship

No abstract provided.

A Conversation On Judicial Decision Making, Robin Cooper Feldman

Faculty Scholarship

No abstract provided.

Clarifying Costs Can Increased Price Transparency Reduce Healthcare Spending?, Jaime S. King, Morgan A. Muir, Stephanie A. Alessi

Faculty Scholarship

No abstract provided.

Social Movements As Constituent Power The Italian Struggle For The Commons, Ugo Mattei, Saki Bailey

Faculty Scholarship

No abstract provided.