Digital Commons Network^™

The Bottom Line On Board Diversity: A Cost-Benefit Analysis Of The Business Rationales For Diversity On Corporate Boards, Lisa M. Fairfax

Faculty Scholarship

The Bottom Line on Board Diversity: A Cost Benefit Analysis of the Business Rationales for Diversity on Corporate Boards critically examines the business rationales for diversity in order to determine whether they can or should be used to encourage greater diversity on the boards of major corporations. The Article acknowledges the validity of some of the business rationales for diversity within corporations more generally, but questions whether those rationales apply with as much force in the context of corporate boards and the obligations board members undertake. On this point, the Article concludes that such rationales promise more, and in some …

Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson

Faculty Scholarship

Three decades ago, it would have been inconceivable for people to discuss seriously the idea of withdrawing the legal and financial support society gives to marriage. In recent years, however, thinkers and policymakers have given more serious thought to the possibility of eliminating marriage as a category entitled to the State’s support. An important consideration in this debate is whether keeping or eliminating the State’s support of marriage matters to the well-being of children. A wealth of studies contemplating modern family forms now exists, many of which invariably stack newer family structures up against the more traditional nuclear family. Until …

The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger

Faculty Scholarship

In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention- sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress’ power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 …

When Should Judges Admit Or Compel Genetic Tests?, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson

Faculty Scholarship

Few decisions are as determinative of a child’s well-being and long-term success as the decision to remove a child from his or her own home following an allegation of abuse by a parent. Using the public health lens Professor Marsha Garrison develops elsewhere in this Issue, this Comment examines one of the most critical questions Child Protective Services agencies face thousands of times a day: whether to remove a child who is a possible victim of abuse or neglect from his or her home. This evidence-based approach shows that the choice to remove the child rather than the alleged offender …

Malpractice Reform As A Health Policy Problem, William M. Sage

Faculty Scholarship

Calling malpractice reform a "health policy problem" means that we should analyze it in terms of the quality of health care, access to health care, and the cost of health care-the basic health policy triad with which we all are familiar. We immediately recognize patient safety as a health policy problem because it is obviously about quality. We may believe there is so much slack in the health care system that we can make major improvements in patient safety without excessive cost. But ultimately, there are going to be cost-safety tradeoffs, which are also health policy concerns. We tend not …

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Faculty Scholarship

Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the approach recently proposed …

Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes — Evaluating Erisa At Age Thirty, Maria O'Brien

Faculty Scholarship

Book Review of The Employee Retirement Income Security Act of 1974: A Political History by James A. Wooten.

Goeres and the many other recent cases like it¹⁰ are remarkable after Mertens and Great West, both for the persistence of the ERISA plaintiff's bar in trying to find ways to obtain make-whole relief in egregious cases and for the continued refusal of Congress to amend ERISA to provide adequate make-whole remedies."¹¹ A patently unjust and inefficient legal regime continues to replicate itself again and again. Conduct that clearly constitutes breach of fiduciary duty, negligent plan administration or worse, …

Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival

Faculty Scholarship

The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court’s handling of environmental cases during Justice Blackmun’s service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author’s October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall …

Testimony On The Regulation Of Indian Gaming, Oversight Hearing On Indian Gaming, Before The United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Federal and tribal regulation is likely to be more successful than state regulation of Indian gaming because tribal governments and the federal government have a greater interest in the long term success of Indian gaming. Uniform federal minimum internal control standards can protect the integrity of the Indian gaming industry nationwide. While federal regulators should exercise a powerful role, they must be respectful of tribal governments.

Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super

Faculty Scholarship

Regulations issued by the Food and Nutrition Service, U.S. Department of Agriculture in July 2000 promote efficient and effective food stamp claims collection by the states. These regulations give states significant flexibility in tailoring their procedures on filing claims. States can incorporate waiver and compromise policies that increase efficiency and can serve low-income households.

An Unnatural Disaster: The Aftermath Of Hurricane Katrina, David M. Driesen, Alyson Flournoy, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Carmen G. Gonzalez, David J. Gottlieb, Donald T. Hornstein, Douglas A. Kysar, Thomas O. Mcgarity, Catherine A. O'Neill, Clifford Rechtschaffen, Christopher Schroeder, Sidney Shapiro, Rena I. Steinzor, Joseph P. Tomain, Robert R.M. Verchick, Karen Sokol

Faculty Scholarship

No abstract provided.

The Aftermath Of Hurricane Katrina, An Unnatural Disaster, Eileen Gauna

Faculty Scholarship

This report analyzes key policy decisions, as well as actions and inaction under health, safety, and environmental laws, that could have better protected New Orleans from the effects of Katrina before the hurricane and those that could have improved the emergency response in its wake. In the area of public health, safety, and the environment, the paper explores the implementation of wetlands law and policy, bad decisions regarding the construction and maintenance of the levee system designed to protect New Orleans, pollution prevention and clean-up laws, and energy policy. In the area of emergency response, it reviews policy decisions related …

Overenforcement, Alex Stein, Richard Bierschbach

Faculty Scholarship

No abstract provided.

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard highlights the holistic model of criminal defense representation, which seeks to address the myriad issues that often lead to the client’s involvement with the criminal justice system with the overarching goal of providing a comprehensive solution to those underlying factors. While lauding these developments, however, Professor Pinard argues that the holistic model has largely overlooked two facets of the criminal justice system that impact greatly the client’s life once the formal representation has concluded: the collateral consequences of criminal convictions and reentry. Professor Pinard explores the emerging attention devoted to these two components, but …

Conflict Of Laws (2005), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2003 through November 31, 2004. The article excludes cases involving federal-state conflicts; intrastate issues such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

In The Interests Of Justice: A Critique Of The Icty Trial Court's Decision To Assign Counsel To Slobodan Milosevic, Milan Markovic

Faculty Scholarship

On February 12, 2002, Slobodan Milosevic became the first head of state to be brought before an international criminal tribunal. The Milosevic trial was hailed as a momentous event for both the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and international justice as a whole. As one former ICTY official said at the start of the trial, "Milosevic's transfer to the Hague is the capstone of the tribunal's somewhat improbable rise from the margins of the international arena to that of a serious international institution."

Unfortunately, the trial appears to have been more than the ICTY bargained for. The …

Judicial Deference In A Post-Deregulation World, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Instructions In Inequality: Development, Human Rights, Capabilities, And Gender Violence In Schools, Erika George

Faculty Scholarship

This Article argues that the international community's gender equality targets will not be realized by 2015 because the problems associated with sexual violence against girls in schools are situated at an intersection of contested conceptual divides between human rights (civil and political liberties) and development aims (social and economic needs). Cracks in the conceptual foundations of both the liberal and utilitarian theories of justice and equality, which support traditional human rights advocacy and economic development plans, respectively render each approach inadequate to fully identify and address the grave danger sexual violence and harassment in schools pose to educational equality. In …

Dying In America - An Examination Of Policies That Deter Adequate End-Of-Life Care In Nursing Homes, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

This article examines current health care policies and government practices that deter appropriate end-of-life care, focusing on the use of hospice services for dying nursing home patients. The authors conclude that hospice and nursing home regulations, reimbursement for hospice and nursing homes, and enforcement of the fraud and abuse rules collude to “chill” utilization of hospice by nursing homes and result in inadequate end-of-life care for many nursing home patients. They argue that these policies and practices have at their roots a number of questionable assumptions and call for a shift in existing paradigms affecting care to this group and …

To Praise The Amt Or To Bury It, Daniel S. Goldberg

Faculty Scholarship

The alternative minimum tax (AMT) has recently become a cause célèbre because many more taxpayers are now subject to it than originally envisioned at the time of its enactment in 1969 (and, indeed, than after any of its several modifications over the years). As such, it has been discussed and criticized in the press and by tax professionals and academics, most recently in Tax Notes by four former Internal Revenue Service commissioners who advocated scrapping it entirely. The criticism has questioned the wisdom of the inadvertent expansion of the AMT in coverage, that is, the number of taxpayers who will …

Secondhand Smoke And The Family Courts: The Role Of Smoke Exposure In Custody And Visitation Decisions, Kathleen Dachille, Kristine Callahan

Faculty Scholarship

This publication is designed to assist courts, practitioners and lay people who are faced with a custody or visitation proceeding in which a child's exposure to secondhand smoke has been or may be raised.

Are Rights Efficient? Challenging The Managerial Critique Of Individual Rights, David A. Super

Faculty Scholarship

This Article contends that enforceable individual rights can improve the efficiency of government operations. The last decade has seen enforceable individual rights eliminated in a wide range of areas, from welfare to the treatment of immigrants and prisoners in U.S. jails to, most recently, the treatment of prisoners in Abu Ghraib and elsewhere overseas. In most instances, opponents of enforceable individual rights have quarreled little with the substantive norms underlying these rights. Instead, they have argued that enforceable legal rights would unduly burden government administration. Supporters of individual rights have tended to concede that they are inefficient, arguing instead that …

Rethinking Fiscal Federalism, David A. Super

Faculty Scholarship

Although interactions between federal and state taxes and spending programs are becoming increasingly controversial, this Article asserts that major theories of federalism built to divide regulatory authority between the two levels of government poorly account for the quite different problems of fiscal cooperation and competition. The Article therefore identifies and distinguishes three justifications for federal funding of states’ operations: In some programs, funding seeks to insulate states from particular fiscal burdens, such as the side effects of federal policies or the abrupt termination of federal responsibility for particular problems. In other programs, funding provides an incentive for states to follow …

Lochner: Another Time, Another Place, Larry Yackle

Faculty Scholarship

Professor Lynn Baker's contribution to this symposium extends her long term project both to defend and to critique the Supreme Court's decisions on the scope of congressional power. I find this work valuable and not a little provocative. If Baker's account of the decisions thus far is even partly right, the Court is poised to assume decision-making responsibility that has long been ceded to Congress. If her proposals for the future are adopted, we are in for a cataclysmic constitutional event that rivals the convulsive period when the nation confronted the judicial arrogation of authority associated (rightly or wrongly) with …

Lochner In Europe: A Comment On Keith Whittington's "Congress Before The Lochner Court", Daniela Caruso

Faculty Scholarship

In 1904, St. Louis, Missouri was the place to go. In conjunction with its spectacular world's fair, the city also hosted the Universal Congress of Lawyers and Jurists, known in academic circles as the foundational event of American comparative law. Within a big screen entirely devoted to the Lochner centennial, this comment aims at opening a window on another centennial - the hundredth anniversary of comparative law in the United States.Though inspired by the Universal Congress, this comment does not partake in the celebratory spirit of anniversaries. Far from espousing a romanticized or universalist conception of comparative law, these pages …

Thou Shalt Not Kill As Defeasible Heuristic: Law And Economics And The Debate Over Assisted Suicide, Daniel J. Gilman

Faculty Scholarship

Although the literature addressing medical decisions at the end of life is vast, surprisingly little of it has come from the perspective of law and economics. This article begins with a critical account of one of the very few law and economics-based discussions of physician-assisted suicide (PAS), that developed by Judge Richard Posner in his book, Aging and Old Age. Central to Judge Posner's account is a model of PAS as a sort of technological innovation. What this particular innovation is supposed to bring is a radical reduction in certain critical information costs attending end-of-life decision making. It is …

Improving Fairness And Accuracy In Food Stamp Fraud Investigations: Advocating Reform Under Food Stamp Regulations, David A. Super

Faculty Scholarship

Some state food stamp agencies are overly aggressive in pursuing charges that claimants have committed intentional program violations. Just as failure to pursue allegations of fraud can undermine the Food Stamp Program’s goals, so can intimidation of claimants. States should take care to follow appropriate procedures in their investigations, and Food and Nutrition Service regulations offer ample grounds to advocate fair treatment of clients. Four key principles should guide states’ antifraud efforts.

Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson

Faculty Scholarship

Child services caseworkers adhere to the belief that, in the absence of prosecution, the only remedy for protecting a child harmed by a parent is to remove the child from her home. The effect of this often is to leave the alleged perpetrator in the household with the victim's siblings. Using sexual violence as an example, this Comment contends the evidence of potential risk for the remaining children is so overwhelming that, as a matter of policy, an adult who violates one child should be removed from the household. Parents who commit incest rarely stop with one child. Ignoring such …

A New Kind Of "Outrageous Misconduct": Effects To Undermine The Law's Ability To Deter And Punish Intentional And Outrageous Corporate Behavior, Candace Howard

Faculty Scholarship

The current tort "reform" movement, if successful, will completely undermine our most effective tool for deterring outrageous corporate misconduct: the threat of punitive damages. Such "reform" would have a particularly egregious impact on the environment and public health because, due to a lack of enforcement and the undetectable nature of many pollutants, environmental offenses are often more difficult to deter than other types of offenses. The essay argues that, although rarely imposed for environmental offenses, punitive damages are especially vital in that arena because, when imposed, they are richly deserved. It concludes that, rather than tort reform, what we need …