Digital Commons Network^™

The Picture Begins To Assert Itself: Rules Of Construction For Essential Health Benefits In Health Insurance Plans Subject To The Affordable Care Act, Wendy K. Mariner

Faculty Scholarship

As the ACA shifts the function of health insurance from voluntary contract to a means of financing health care, it poses some challenges to traditional doctrines for interpreting health plan provisions. This article explores whether and how the doctrine of reasonable expectations and rules of statutory interpretation might apply to Essential Health Benefits coverage. A functional approach linking the two into a doctrine of reasonable statutory expectations could move us toward developing more consistent rules of interpretation within a more realistic conception of contemporary health insurance.

Michael Brown, Eric Garner, And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Professor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons.

The Nlrb As An Uberagency For The Evolving Workplace, Michael Z. Green

Faculty Scholarship

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker's right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rule …

Launching The Los Angeles Incubator Consortium, Laura Dym Cohen, Luz E. Herrera, William T. Tanner

Faculty Scholarship

This Article offers a snapshot of the initial two-month development process of a new law firm incubator program-the Los Angeles Incubator Consortium (LAIC). LAIC is a collaborative project of Pepperdine University School of Law, Southwestern Law School, and UCLA School of Law that was launched in collaboration with the Los Angeles Law Library and various local legal aid providers through seed funding from the California Commission on Access to Justice.14 Part II discusses the leadership role of California's Commission on Access to Justice in promoting incubators as models to increase the availability of affordable legal services for the modest-means population. …

Revisiting The Integration Of Law And Fact In Contemporary Federal Civil Litigation, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Se(C)(3): A Catalyst For Social Enterprise Crowdfunding, Dana Brakman Reiser, Steven A. Dean

Faculty Scholarship

No abstract provided.

The Suez Crisis Of 1956 And Its Aftermath: A Comparative Study Of Constitutions, Use Of Force, Diplomacy And International Relations, Pnina Lahav

Faculty Scholarship

This article compares and juxtaposes constitutional war powers (deployed by the belligerents) and diplomacy (deployed by the US) as means of pursuing foreign policy during the 1956 Suez crisis.

In the fall of 1956 the United Kingdom, France and Israel launched a war against Egypt. It soon became clear that this was a coordinated effort. The war started a few days before the US presidential elections but the parties did not share their plans with President Eisenhower. The Hungarian rebellion and the Soviet invasion of Hungary occurred at the same time. Within weeks, the United States, in cooperation with the …

Spying Inc., Danielle K. Citron

Faculty Scholarship

The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app can provide continuous access to the phone owner’s calls, texts, snapchats, photos, calendar updates, and movements. Stalking apps destroy the privacy and confidentiality of cell phone activities. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners. Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious …

Se(C)(3): A Catalyst For Social Enterprise Crowdfunding, Dana Brakman Reiser, Steven A. Dean

Faculty Scholarship

The emerging consensus among scholars rejects the notion of tax breaks for social enterprises, concluding that such prizes will attract strategic claimants, ultimately doing more harm than good The SE(c)(3) regime proposed by this Article offers entrepreneurs and investors committed to combining financial returns and social good with a means of broadcasting that shared resolve. Combining a measured tax benefit for mission-driven activities with a heightened burden on shareholder financial gains, the revenue-neutral SE(c)(3) regime would provide investors and funding platforms with a low-cost means of screening out "greenwashed" ventures.

Panel On Sex Trafficking (Transcript), Cyra Choudhury, Aziza Ahmed, Sienna Baskin, Sandy Skelaney

Faculty Scholarship

AHMED: I am going to speak today about how anti-trafficking efforts are undermining HIV best practices. I hope to explore a series of questions: Why has the anti-trafficking movement become so counterproductive for sex workers? Finally, how do debates on trafficking travel and impact women in countries heavily impacted by HIV?

I thought I would begin by giving a little bit of history and context on the issue of feminism, sex work, and HIV. When HIV was first discovered in the 1980s, the initial response was almost universally coercive and stigmatizing towards the communities that were at high risk for …

Trade Secret Hacking, Online Data Breaches, And China's Cyberthreats, Peter K. Yu

Faculty Scholarship

Online hacking from China, Iran, North Korea, Russia, and other parts of the world has caught the attention of U.S. policymakers, commentators, and the American public. For example, the discussion of the systematic attacks launched by potentially government-sponsored Chinese hackers reinforces the view that China is using all means necessary to compete against the United States. Most recently, the unprecedented cyberattack on Sony's movie studio also delayed and scaled back the nationwide theatrical release of the film The Interview. This attack led President Obama to call for greater cooperation between the government and the private sector to protect cybersecurity and …

Payday Lenders, Vehicle Title Loans, And Small-Value Financing: The Cfpb's Proposal To Regulate The Fringe Economy, Christopher K. Odinet

Faculty Scholarship

The market for payday lenders, businesses that provide vehicle title loans, and other small-value financing players is rife with controversy. Some see them as predatory lenders that weave a web of never-ending debt designed to capture the weakest and most economically vulnerable of society. However, advocates of these financial institutions argue that for many Americans who are otherwise shut out of the conventional lending market, these players provide the only viable source of credit in times of economic hardship. Whatever the view, these businesses, their borrowers, and the credit markets that they together comprise are often referred to in legal …

Rethinking Intangible Cultural Heritage And Expressions Of Folklore: A Lesson From The Fcc’S Localism Standards, Jon M. Garon

Faculty Scholarship

This article reviews the underlying societal imperatives reflected in a policy of intangible cultural heritage and the intellectual property-like regimes being developed to protect these interests. It contrasts UNESCO efforts with more narrowly tailored efforts of WIPO and juxtaposes those approaches with the localism model developed under the FCC. While aspects of the WIPO protection efforts focusing on trademark-like and trade secret-like protections benefit the people and cultures these policies hope to serve, additional copyright-like protections will likely do more harm than good. Instead, global public policy will be far better served through emphasis on the FCC's localism attributes of …

Mortgaging The Meme: Financing And Managing Disruptive Innovation, Jon M. Garon

Faculty Scholarship

Traditional financing of innovative companies emphasizes the use of patents and associated intellectual property rights to secure debt and provide assets for valuation. Although the model suffices for incremental innovation, it does not account for investments in disruptive innovation, those that undermine traditional business models, supply chains or industry relationships.

Disruptive innovation can be described as the introduction of a new conceptual idea or meme into an existing system that causes the system to be fundamentally altered. Assembly lines, air conditioning, digital film, and personal computers represent such innovations, all of which led to fundamental paradigm shifts.

The convergence of …

Localism As A Production Imperative: An Alternative Framework To Promoting Intangible Cultural Heritage And Expressions Of Folklore, Jon M. Garon

Faculty Scholarship

In the United States, the policy of localism – the legislative goal of fostering local community expression and competence to deliver local content – finds its home in the Telecommunications Act rather than either the Copyright Act or Trademark Act. Other nations have introduced values of localism into trade policy, content distribution rules, and international efforts to protect intangible cultural heritage and expressions of folklore.

Jurisdictions in every continent are struggling to address the pressures of globalism through efforts to protect indigenous peoples’ and minority communities’ languages and culture. These efforts take many forms. Nations have introduced efforts to protect …

Legal Education In Disruption: The Headwinds And Tailwinds Of Technology, Jon M. Garon

Faculty Scholarship

By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.

This paper focuses on the implications of these profound disruptive …

Commerce, Commonality, And Contract Law: Legal Reform In A Mixed Jurisdiction, Christopher K. Odinet

Faculty Scholarship

This Article explores the tradition/reform dichotomy as it exists in certain jurisdictions that, because of their unique history and nature, are particularly susceptible to the struggle between legal tradition and legal reform — mixed jurisdictions. In order to more closely examine the tradition/reform dichotomy and its theoretical and practical effects, this Article analyzes the role that traditional legal institutions play in the legal reform process through the lens of America’s lone mixed jurisdiction — Louisiana.

By exploring Louisiana’s subtle, yet prevalent, anchor-like legal conundrum caused by the struggle between progress and tradition — the process of mooring oneself to existing …

Racial Mirroring, Dawinder S. Sidhu

Faculty Scholarship

“Racial mirroring” refers to efforts by one group to match the primary racial composition of another group. In contrast to racial balancing, which takes place when two groups are adjusted simultaneously to achieve a desired degree of racial equilibrium between them, racial mirroring occurs when the racial makeup of one group is adjusted so as to reflect the predominant racial identity of the second group. Employers and even federal courts engage in racial mirroring. For example, in order to generate trust among customers, employers have hired or promoted individuals of the same race as the employers’ primary customer base. Further, …

Out Of Sight, Out Of Mind: How Opportunity Cost Neglect Undermines Democracy, Gary M. Lucas Jr

Faculty Scholarship

Every government program has an opportunity cost, which consists of the private and public goods that society must forgo to make the program possible. In evaluating government programs, rational voters would take opportunity costs into account. Unfortunately, opportunity costs are usually implicit, and psychologists have shown that decision makers tend to irrationally ignore implicit information while giving too much weight to salient situational elements. This Article presents evidence that the bias against implicit information causes voters to neglect the opportunity costs of government programs. The Article also explains for the first time the implications of opportunity cost neglect for democracy.

Countersupermajoritarianism, Nelson Tebbe, Frederic Bloom

Faculty Scholarship

No abstract provided.

Punishment As Protection, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Helping Buyers Beware: The Need For Supervision Of Big Retail, Rory Van Loo

Faculty Scholarship

Since the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms' internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, …

Fairly Assessing Risk And Recidivism, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Ascentria Care Alliance, Coalition Against Trafficking In Women, Children’S Advocacy Center Of Suffolk County, Demand Abolition, Eva Center, And My Life My Choice In Support Of Plaintiff-Appellee On The Constitutionality Of An Act Relative To The Commercial Exploitation Of People, Commonwealth Of Massachusetts V. Tyshaun Mcghee, Et Al., Julie A. Dahlstrom, Felicia Ellsworth, Tasha Bahal, Michelle Sandals

Faculty Scholarship

The victims' story here is a heartbreaking one, and sadly, all too familiar. Too often, victims are targeted, advertised online, and transported for purposes of prostitution while subjected to poor conditions, coercion, and often physical violence. Recognizing that human trafficking is a pervasive and troubling epidemic, Congress and state legislatures around the country have taken actions to criminalize trafficking, punish its offenders, and provide necessary services for trafficking victims. In 2011, Massachusetts enacted An Act Relative to the Commercial Exploitation of People ("Massachusetts Anti-Trafficking Statute") to address the problem of trafficking in the Commonwealth. Among other key provisions, the Massachusetts …

The Impact Of Federal Law On A Decedent’S Digital Assets, Sergio Pareja

Faculty Scholarship

Recently, estate planners and scholars have begun to grapple with the problem of transferring digital assets at death. In Probate Law Meets the Digital Age, Professor Naomi Cahn adds an interesting new dimension to this relatively new issue. She focuses on the effect of the Stored Communications Act (“SCA”) on estate administration. Although the SCA does not affect a fiduciary’s ability to distribute assets once they are discovered, it affects the fiduciary’s ability to examine on-line accounts to discover those assets.

The Sikh's Public Relations Problem, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Paper And Flexible Substrates As Materials For Biosensing Platforms To Detect Multiple Biotargets, Umut A. Gurkan

Faculty Scholarship

The need for sensitive, robust, portable and inexpensive biosensing platforms is of significant interest in clinical applications for disease diagnosis and treatment monitoring at the point-of-care (POC) settings. Rapid, accurate POC diagnostic assays play a crucial role in developing countries, where there are limited laboratory infrastructure, trained personnel and financial support. However, current diagnostic assays commonly require long assay time, sophisticated infrastructure and expensive reagents that are not compatible with resource-constrained settings. Although paper and flexible material-based platform technologies provide alternative approaches to develop POC diagnostic assays for broad applications in medicine, they have technical challenges integrating to different detection …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French

Faculty Scholarship

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

Tissue Specific Dysregulated Protein Subnetworks In Type 2 Diabetic Bladder Urothelium And Detrusor Muscle, Sara E. Tomechko, Guiming Liu, Mingfang Tao, Daniela Schlatzer, C. Thomas Powell, Sanjay Gupta, Mark R. Chance, Firouz Daneshgari

Faculty Scholarship

Diabetes mellitus is well known to cause bladder dysfunction; however, the molecular mechanisms governing this process and the effects on individual tissue elements within the bladder are poorly understood, particularly in type 2 diabetes. A shotgun proteomics approach was applied to identify proteins differentially expressed between type 2 diabetic (TallyHo) and control (SWR/J) mice in the bladder smooth muscle and urothelium, separately. We were able to identify 1760 nonredundant proteins from the detrusor smooth muscle and 3169 nonredundant proteins from urothelium. Pathway and network analysis of significantly dysregulated proteins was conducted to investigate the molecular processes associated with diabetes. This …

Frand And Compulsory Licenses: Analysis And Comparison, Srividhya Ragavan, Raj S. Davé

Faculty Scholarship

This section compares two different forms of licenses being FRAND and complusory license. Both forms of licenses are critical to achieve access to otherwise difficult to access technologies. The FRAND licenses have been widely embraced, especially in the software, mobile phones, and communications sectors. Compulsory licenses have been sparingly used by Governments where the public's need for the invention was considered to over-weigh the needs of the patentee, essentially for pharmaceuticals. Compulsory licenses have been universally criticized for being an imposed burden on the patentee. In comparing these two forms of licenses, this section outlines that despite the obvious differences …