Digital Commons Network^™

The Managed Care Dilemma: Can Theories Of Tort Liability Adapt To The Realities Of Cost Containment?, Barbara A. Noah

Faculty Scholarship

Over the years, the United States health care system has undergone a transformation from a market comprised mainly of self employed physicians· in solo or small group practices to one in which far fewer physicians engage in this type of independent practice. More than three quarters of the physicians in this country now practice medicine within some form of managed care organization ("MCO") or see some managed care patients. The public increasingly perceives the care provided through MCOs as inferior to traditional feefor-service care. Responding to constituent pressures, legislatures in more than twenty states recently have considered bills regulating managed …

Preserving A Place For The Past In Our Future: A Survey Of Historic Preservation In West Virginia, Megan M. Carpenter

Faculty Scholarship

Historic designation is an important step toward protecting a historic district, in part because it allows property owners to obtain tax credits in the rehabilitation of their properties. Not only does it certify the importance of an historic area, but it also creates economic opportunities for property and business owners in that area through both tax credits and tourism opportunities. Because historic designation and the tax credits that go along with it can be lost if more than sixty-five percent of all downtown structures in an historic district lose their historic character, designation depends upon the cooperation of property owners. …

The Shaping Force Of Corporate Law In The New Economic Order, Jeffrey N. Gordon

Faculty Scholarship

My topic for this Allen Chair lecture is the shaping force of corporate governance in the new economic order. It is easy to think of corporate law as an arcane field with mysterious terms and peculiar rules, ultimately of interest only to those who are prepared to bill at least 2000 hours a year to unravel its complexities. This is the view that there is a pointless mystery about shareholders, directors, common stocks, debentures, and the bizarre creature my class encountered recently, a convertible exchangeable cumulative preferred stock; and that ultimately corporate law and practice consists of the expert manipulation …

Comments On Campaign Finance Reform, Henry P. Monaghan

Faculty Scholarship

Realistically viewed, the public does not care much about campaign finance. However, the commentators and politicians involved with the campaign process care a great deal. Yet, of those who have expressed any view at all about our topic, few still believe that the existing distinction between expenditures and contributions is satisfactory.

I agree with Judge Winter's statement that, from the point of view of the speaker, the distinction between contributions and expenditures is pretty weak. This is because the choice between the two is made by a donor, who looks for the most efficient way to espouse political ideas and …

Een Onrechtmatig Bestaan In Nederland: Een Stand Van Zaken, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

Appellate Review Of Scientific Evidence Under Daubert And Joiner, David L. Faigman

Faculty Scholarship

No abstract provided.

Foreword: The New Estates, Lance Liebman

Faculty Scholarship

Telecommunications Law is under pressure from fast-paced technological advances and changes in the industry structure. As the high-stakes debates plays itself out in federal and state legislatures, agencies and courts, the academic study is struggling to catch up. The author poses provocative questions about the present and future of Telecommunications Law. Of paramount interest are the ill-fitting legal categories that continue to influence crucial determinations about the level of First Amendment protection accorded various communications media, and the reach of Constitutional Takings doctrine that pits incumbent regulated industries against government regulators and up-start competitors looking to shake-up the established order. …

The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch

Faculty Scholarship

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear "appeals" from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence – that the …

Specialized Labor And Employment Law Institutions In New Zealand And The United States, Andrew P. Morriss

Faculty Scholarship

Legal specialization takes several forms: decision-makers and advocates can specialize in particular types of cases, specialized rules can govern particular types of disputes, facts may be found by experts, appeals heard by special courts, or some or all of these combined. The American and New Zealand employment and labor law regimes make different use of specialized decision-makers, in part because of differences in their use of specialized legal rules for labor and employment law. These differences provide an opportunity to assess the appropriateness of specialization in legal decisionmaking.

Specialization in the legal system is simply one form of the more …

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel Charles

Faculty Scholarship

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

Firm Capabilities And Managerial Decision-Making: A Theory Of Innovation Biases, Janet E. L. Bercovitz, John M. De Figueiredo, David J. Teece

Faculty Scholarship

No abstract provided.

Purpose Scrutiny In Constitutional Analysis, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Police Discretion And The Quality Of Life In Public Places: Courts, Communities, And The New Policing, Debra A. Livingston

Faculty Scholarship

The advent of community and problem-oriented policing – the so-called "quality-of-life" policing philosophies – raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an …

Recent Legislation: Constitutional Law – Congress Imposes New Restrictions On Use Of Funds By The Legal Services Corporation – Omnibus Consolidated Rescissions And Appropriations Act Of 1996, Pub. L. No. 104-134, 110 Stat. 1321, Benjamin L. Liebman

Faculty Scholarship

Fierce political battles have raged about the Legal Services Corporation (LSC) for much of its twenty-three year history. Critics have attacked LSC for pursuing a "radical agenda" and for "engaging in dubious litigation that is of no real benefit to poor people," while supporters have termed LSC "the one program in the entire war on poverty that made a difference" and have decried the "campaign to deny the right of legal representation to the poor." Last year, in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRAA), Congress reduced LSC funding by thirty percent – to $278 million in …

The Rise Of Sublocal Structures In Urban Governance, Richard Briffault

Faculty Scholarship

The dominant law and economics model of local government, based on the work of Charles M. Tiebout, assumes that decentralization of power to local governments promotes the efficient delivery of public goods and services. In his seminal article, A Pure Theory of Local Expenditures, Tiebout contended that the existence of a large number of local governments in any given area permits a "market solution" to the question of how to determine the level and mix of government services that people desire. The multiplicity of local governments in an area means that, as long as each locality is free to …

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

Congressional Reviews Of Agency Regulations, Daniel Cohen, Peter L. Strauss

Faculty Scholarship

On March 29, 1996, President Clinton signed Public Law 104-121, the Contract with America Advancement Act of 1996. Title II, the Small Business Regulatory Enforcement Fairness Act of 1996 ("Act"), among other things, added a new chapter 8 to Title 5 of the United States Code. Chapter 8 requires congressional review of agency regulations. Beginning March 29, 1996, all federal agencies, including independent agencies, are required to submit each final and interim final rule for review by Congress and to the General Accounting Office (GAO) before the final or interim final rule can take effect (hereinafter final and interim final …

Golden Rules For Transboundary Pollution, Thomas W. Merrill

Faculty Scholarship

Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of treaties regulating particular aspects of the global environment has reinforced calls for more general regimes of international environmental regulation.

One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon. Air and water pollution, and to a lesser extent groundwater contamination, can cross political …

State Regulation Of Managed Care And The Employee Retirement Income Security Act, Wendy K. Mariner

Faculty Scholarship

The federal Employee Retirement Income Security Act (ERISA)1 is the federal law that governs employee-benefit plans offered by private employers and unions. ERISA has long hindered state efforts to expand access to health care, because it prohibits states from requiring all employers to offer benefits to their employees.2 States have shifted their attention from seeking universal insurance coverage for health care to regulating the benefits of people who already have health insurance. Reports describing how some managed-care organizations limit the care provided to their enrollees have prompted a rash of legislative efforts intended to protect patients from receiving …

Out Of Focus, John C. Dernbach

Faculty Scholarship

No abstract provided.

Funding Fairness: Public Investment, Proprietary Rights And Access To Health Care Technology, William M. Sage

Faculty Scholarship

In her accompanying Article, "Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research," Professor Rebecca Eisenberg suggests that federal technology transfer policies should be reexamined in light of actual experience with patented technologies. Indeed, the relationship among federal research funding, patent law, and medical innovation has become more complicated in the years since the passage of the Bayh-Dole Act. Rising health care spending despite slowing overall economic growth has fostered the development of private sector managed care, has led to cutbacks in government support for both research and clinical services, and has increased the percentage of uninsured …

The War On Drugs: Evening The Odds Through Use Of The Airport Drug Courier Profile, Brian A. Wilson

Faculty Scholarship

The scourge of illegal drug abuse plagues the United States despite increased efforts by various law enforcement agencies to eradicate the narcotics trade. "The toll [drug abuse inflicts] on our society in lives made wretched, in costs to citizens, and in profits of gross size funneled to the most odious criminals, is staggering." Drugs lead the abuser fortunate enough to evade his demise to physical, financial and moral devastation, although their pernicious effects are not confined to the individual who uses them. The enormous profits generated by the drug trade invite corruption of unscrupulous law enforcement officials through lucrative bribes. …

Risky Business, Michael S. Baram

Faculty Scholarship

In prior studies by high-level commissions, emphasis was given to improving the scientific basis and institutional procedures for risk assessment and risk regulation within existing statutory frameworks. Recommendations have led to slow but steady progress. This study is considerably different. It emphasizes a public health approach for efficient use of resources in a new flexible framework for risk management, reductionist approaches to risk assessment and characterization, increased public involvement, and various methods for managing such public involvement. It provides a mix of aspirations and concepts, procedures, and "shop floor rules" for putting the new system of risk management into practice. …

Major Sources Of Criteria Pollutants In Nonattainment Areas: Balancing The Goals Of Clean Air, Environmental Justice, And Industrial Development, Eileen Gauna

Faculty Scholarship

If an area is suffering from economic decay as well as unhealthy air, should new facilities -- and more pollution -- be allowed into the area anyway? If so, the result is that impoverished areas are afforded less environmental protection.This article addresses an important aspect of this dilemma: under what circumstances, if any, should a facility which will emit large amounts of air pollution be allowed to locate or expand operations in areas of existing poor air quality? Part II of this article provides a brief historical explanation of the Clean Air Act as it pertains to major stationary sources. …

A Three-Dimensional Model Of Stadium Owner Liability In Spectator Injury Cases, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes the duties placed on the stadium and event-site owners to prevent such injuries, as well as the defenses available to stadium and event-site owners. Spectator injuries constitute a large area of negligence law and there is a commonality among the various spectator sports. This article analyzes stadium/event-site owner liability in a three-dimensional model. The purpose of a three-dimensional model is to unweave the complex fabric which constitutes liability for spectator injuries. Various sports are independently analyzed in the first section, which represents one dimension. Part II assesses three common types of jurisdictions which affect the stadium/event-site owner's …

Lmo's: Treasure Chest Or Pandora's Box, Michael S. Baram

Faculty Scholarship

Biotechnology is beginning to trans- A form agriculture across the globe. After thousands of years of traditional plant and animal breeding, and centuries of mechanization and chemical application, genetic research has opened a Pandora's box of living modified organisms (LMOs) designed to improve the productivity and efficiency of commercial agriculture. A multitude of transgenic crops and animals is now being introduced into commerce by biotechnology companies, and b nations are puzzling out how to appropriate the benefits and manage the risks.

American biotechnology companies and agencies are the leading proponents of using LMOs. They claim that two decades of costly …

On The Idea Of Private Law, Martin Stone

Faculty Scholarship

No abstract provided.

Liability For Managed Care Decisions: The Employee Retirement Income Security Act (Erisa) And The Uneven Playing Field, Wendy K. Mariner

Faculty Scholarship

As managed care organizations expand their programs of quality assurance and physician evaluation, more medical malpractice lawsuits may be brought against managed care organizations on the ground that, like hospitals, they are legally responsible for negligent corporate acts that injure patients. However, the federal Employee Retirement Income Security Act (ERISA) shields managed care organizations from liability when they are part of an employee group health plan governed by ERISA. Unlike patients with other types of insurance, patients in ERISA health plans do not have a malpractice remedy for a managed care organization's negligence. A few federal appeals courts recently recognized …

Our Common Future, American Style (Reviewing President’S Council On Sustainable Development, Sustainable America (1996)), John C. Dernbach

Faculty Scholarship

No abstract provided.

Gender Matters: Implications For Clinical Research And Women's Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.