Digital Commons Network^™

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2019 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions.

Keeping Lawyers' Houses Clean: Global Innovations To Advance Public Protection And The Integrity Of The Legal Profession, Susan Saab Fortney

Faculty Scholarship

Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to …

Rethinking Standards Of Appellate Review, Adam N. Steinman

Faculty Scholarship

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

Warranty, Product Liability And Transaction Structure: The Problem Of Amazon, Edward J. Janger, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

"Toughen Up, Buttercup" Versus #Timesup: Initial Findings Of The Aba Women In Criminal Justice Task Force, Maryam Ahranjani

Faculty Scholarship

"Practicing criminal law as a woman is like playing tackle football in a dress.” Andrea George, Executive Director of the Federal Public Defender for Eastern Washington and Idaho, began her testimony to the American Bar Association’s Women in Criminal Justice Task Force with that powerful observation. In the wake of the #MeToo movement, the ABA has focused on ways to enhance gender equity in the profession and in the justice system. The Criminal Justice Section of the ABA has invested significant resources in the creation of the Women in Criminal Justice Task Force (WCJ TF), which launched its work in …

The Limits Of Medical X-Pertise: Gender Markers In A Pandemic, Heron Greenesmith, Andy Izenson

Faculty Scholarship

The world changed drastically in 2020. The pandemic has far reaching consequences, and so too do the current civil rights movements and the struggle for gender justice and liberation. This Article seeks to describe a moment in time, a moment of doubt of how one 's gender and race will predict one 's ability to survive the pandemic-not simply COVID-19, but the pandemic writ-large and all the wrenches it has thrown into the health-care machine. How do those of us standing at the edge of a gender revolution navigate these waters? Will our health be the price we pay for …

What Becomes A Legendary Constitutional Campaign Most? Marking The Nineteenth Amendment At One Hundred, Linda C. Mcclain

Faculty Scholarship

What most becomes a landmark anniversary in the legendary campaign by women (and some men) for woman suffrage that, in 1920, led to Congress’s ratifying the Nineteenth Amendment to the U.S. Constitution? This framing of the question alludes to the famous, decades-long Blackglama advertising campaign, “What becomes a legend most?,” which (beginning in 1968) enlisted the charisma of famous women (and some men) to glamorize mink coats. This Essay also appeals to the dual meanings of legendary -- “of, relating to, or characteristic of legend” and “well-known, or famous” -- and argues that the campaign for woman suffrage is the …

Paying For Unapproved Medical Products, Kelly Mcbride Folkers, Alison Bateman-House, Christopher Robertson

Faculty Scholarship

This symposium article examines the use of investigational (un-approved) medical products in the United States, with particular focus on who pays for this use. In the United States, the question of who pays for the use of approved medical products for their intended indications is complicated enough, with some expenses borne by private payers, some by public payers, some covered as charity care, and some paid out of pocket by patients. A separate question is off-label use, in which an approved medical product is used for an unapproved indication. In this article, we focus on a narrower issue: what entities …

A “Woman’S Best Right”—To A Husband Or The Ballot?: Political And Household Governance In Anthony Trollope’S Palliser Novels, Linda C. Mcclain

Faculty Scholarship

The year 2020 marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the U.S. Constitution. In 2018, the United Kingdom marked the one hundredth anniversary of some women securing the right to vote in parliamentary elections and the ninetieth anniversary of women securing the right to vote on the same terms as men. People observing the Nineteenth Amendment’s centenary may have difficulty understanding why it required such a lengthy campaign. One influential rationale in both the United Kingdom and the United States was domestic gender ideology about men’s and women’s separate spheres and destinies. This ideology …

More Than The Vote: 16-Year-Old Voting And The Risks Of Legal Adulthood, Katharine B. Silbaugh

Faculty Scholarship

Advocates of 16-year-old voting have not grappled with two significant risks to adolescents of their agenda. First, a right to vote entails a corresponding accessibility to campaigns. Campaign speech is highly protected, and 16-year-old voting invites more unfettered access to minors by commercial, government, and political interests than current law tolerates. Opening 16-year-olds to campaign access undermines a considered legal system of managing the potential exploitation of adolescents, which sometimes includes direct regulation of entities and also gives parents authority in both law and culture to prohibit, manage, or supervise contacts with every kind of person interested in communicating with …

The Revival Of Respondeat Superior And Evolution Of Gatekeeper Liability, Rory Van Loo

Faculty Scholarship

In an era of servants and masters, respondeat superior emerged to hold the powerful accountable for the acts of those they control. That doctrine’s significance has only grown in an economy driven by large corporations that rely heavily on legions of subsidiaries and independent contractors, such as banks deploying independent call centers, oil companies using drilling contractors, and tech platforms connecting consumers to app developers. It is widely believed that firms can avoid third- party liability for many laws by outsourcing or creating subsidiaries.

This Article shows that common narratives of the demise of third-party liability are incomplete. Respondeat superior …

Struggle For The Soul Of Medicaid, Nicole Huberfeld, Sidney Watson, Alison Barkoff

Faculty Scholarship

Medicaid is uniquely equipped to serve low-income populations. We identify four features that form the “soul” of Medicaid, explain how the administration is testing them, and explore challenges in accountability contributing to this struggle. We highlight the work of watchdogs acting to protect Medicaid and conclude with considerations for future health reform.

Social Solidarity In Health Care, American-Style, Erin C. Fuse Brown, Matthew B. Lawrence, Elizabeth Mccuskey, Lindsay F. Wiley

Faculty Scholarship

The ACA shifted U.S. health policy from centering on principles of actuarial fairness toward social solidarity. Yet four legal fixtures of the health care system have prevented the achievement of social solidarity: federalism, fiscal pluralism, privatization, and individualism. Future reforms must confront these fixtures to realize social solidarity in health care, American-style.

Keeping The Patient At The Center Of Machine Learning In Healthcare, Jessica Findley, Andrew Woods, Christopher Robertson, Marvin J. Slepian

Faculty Scholarship

Char et al. (2020) aspire to provide "a systematic approach to identifying ... ethical concerns" around machine learning healthcare applications (ML-HCAs), which includes artificial intelligence and big data. Their approach, styled around the development "pipeline" for new technologies, has valuable insights, but we think it over-emphasizes technical design questions and under-emphasizes core ethical questions. There is little ethical debate about whether to maximize accuracy, evaluation, and oversight, at reasonable cost. Of course those goals should be pursued, but these are design challenges about feasibility more than ethical concerns.

Desnatada: Latina Illumination Of Breastfeeding, Race, And Injustice, Jasmine Gonzales Rose

Faculty Scholarship

In Skimmed: Breastfeeding, Race, and Injustice, Andrea Freeman brilliantly explains how racism results in lower breastfeeding rates by Black mothers,¹ which in turn results in poorer health outcomes--including higher mortality rates--for Black babies.² She provides four primary reasons for this phenomenon: (1) the history and legacy of slavery, (2) the imposition of racist gender stereotypes on Black women, (3) racially-targeted formula promotion by manufacturers and hospitals, and (4) government benefits and employment policies that obstruct poor people's ability to breastfeed. The first two of these reasons are particularly devastating: the legacy of slavery and misogynoiristic³ stereotypes …

The Hypercoagulable State In Covid-19: Incidence, Pathophysiology, And Management, Mouhamed Yazan Abou-Ismail, Akiva Diamond, Yasmin Arafah, Lalitha Nayak

Faculty Scholarship

The 2019 coronavirus disease (COVID-19) presents with a large variety of clinical manifestations ranging from asymptomatic carrier state to severe respiratory distress, multiple organ dysfunction and death. While it was initially considered primarily a respiratory illness, rapidly accumulating data suggests that COVID-19 results in a unique, profoundly prothrombotic milieu leading to both arterial and venous thrombosis. Consistently, elevated D-dimer level has emerged as an independent risk factor for poor outcomes, including death. Several other laboratory markers and blood counts have also been associated with poor prognosis, possibly due to their connection to thrombosis. At present, the pathophysiology underlying the hypercoagulable …

Postmodern Violent Conditions In Loher's Innocence, Peter Yang

Faculty Scholarship

Despite its theatrical success, Dea Loher's Innocence faces a heated debate among German theatre and literary critics. Some regard it as a neorealist drama that has reached the highest level of the theatre, but others denounce it as a diffuse, kitschy portrayal of violence. The goal of this paper is to explore themes of the play to negotiate—against the claims of its existing theatre and literary criticism—more accurate critical guidelines of evaluating this theatrical work. The results of this study are expected to contribute to a better understanding of postmodernism and postdramatic theatre in general and of this postdramatic writing …

Case Preview: In Newest Chapter In Long-Running Water Dispute, Court Will Hear First-Ever Challenge To Ruling By Interstate River Master, Reed D. Benson

Faculty Scholarship

Find out more information regarding Texas v. New Mexico at SCOTUSblog.

Read more about Professor Reed Benson's involvement on the UNM Law News Page.

Setting The Standard: Multidisciplinary Hallmarks For Structural, Equitable And Tracked Antibiotic Policy, Claas Kirchhelle, Paul Atkinson, Alex Broom, Komatra Chuengsatiansup, Jorge Pinto Ferreira, Nicolas Fortané, Isabel Frost, Christoph Gradmann, Stephen Hinchliffe, Steven J. Hoffman, Javier Lezaun, Susan Nayiga, Scott H. Podolsky, Kevin Outterson, Stephanie Raymond, Adam P. Roberts, Andrew C. Singer, Anthony D. So, Luechai Sringernyuang, Elizabeth Tayler, Susan Rogers Van Katwyk, Clare I. R. Chandler

Faculty Scholarship

There is increasing concern globally about the enormity of the threats posed by antimicrobial resistance (AMR) to human, animal, plant and environmental health. A proliferation of international, national and institutional reports on the problems posed by AMR and the need for antibiotic stewardship have galvanised attention on the global stage. However, the AMR community increasingly laments a lack of action, often identified as an ‘implementation gap’. At a policy level, the design of internationally salient solutions that are able to address AMR’s interconnected biological and social (historical, political, economic and cultural) dimensions is not straightforward. This multidisciplinary paper responds by …

Thionated Organic Compounds As Emerging Heavy-Atom-Free Photodynamic Therapy Agents, Luis A. Ortiz-Rodríguez, Carlos E. Crespo-Hernández

Faculty Scholarship

This minireview focuses on recent progress in developing heavy-atom-free photosensitizers based on the thionation of nucleic acid derivatives and other biocompatible organic compounds for prospective applications in photodynamic therapy. Particular attention is given to the use of thionated nucleobase derivatives as "one-two punch"photodynamic agents. These versatile photosensitizers can act as "Trojan horses"upon metabolization into DNA and exposure to activating light. Their incorporation into cellular DNA increases their selectivity and photodynamic efficacy against highly proliferating skin cancer tumor cells, while simultaneously enabling the use of low irradiation doses both in the presence and in the absence of molecular oxygen. Also reviewed …

Cultural Adaptation And Content Validity Of A Chinese Translation Of The 'Person-Centered Primary Care Measure': Findings From Cognitive Debriefing, Stephen J. Zyzanski, Kurt C. Stange

Faculty Scholarship

Objectives To develop an equivalent Chinese translation of the Person-Centered Primary Care Measure (PCPCM) and to establish its cultural adaptability and content validity through cognitive debriefing. Design The original English PCPCM was first translated into Chinese by double forward-translation by professional translators. The reconciliated Chinese version was then doubly back-translated into English by two other professional translators blinded to the forward-translation. On affirmation on its linguistic equivalence with the developers of the original English PCPCM, the reconciliated Chinese PCPCM was sent for cognitive debriefing with 20 Chinese-speaking primary care subjects by a trained interviewer using structured probing questions to collect …

Assessment Of Mixed-Reality Technology Use In Remote Online Anatomy Education, Susanne Wish-Baratz, Andrew R. Crofton, Jorge Gutierrez, Erin Henninger, Mark A. Griswold

Faculty Scholarship

Introduction: The coronavirus disease 2019 (COVID-19) pandemic has presented challenges for education worldwide, especially in medical schools that rely on cadaver-based dissection for anatomy. The advent of commercial mixed-reality (MR) technology, such as the HoloLens (Microsoft Corporation), offers new possibilities for anatomy education.1 At Case Western Reserve University (CWRU), the state of Ohio’s shelter in place order meant that students did not return from spring break in 2020, requiring an urgent modification to the anatomy curriculum, which has featured MR technology since 2018.2 We report our initial experience using MR to teach anatomy remotely to students located throughout North America. …

Conceptualizing The Effects Of Continuous Traumatic Violence On Hiv Continuum Of Care Outcomes For Young Black Men Who Have Sex With Men In The United States, Dexter R. Voisin

Faculty Scholarship

The United States (US) is on track to achieve the 90-90-90 targets set forth by UNAIDS and the National HIV/AIDS strategy, yet significant racial disparities in HIV care outcomes remain, particularly for young Black men who have sex with men (YBMSM). Research has demonstrated that various types of violence are key aspects of syndemics that contribute to disparities in HIV risk. However, little research has looked collectively at cumulative violent experiences and how those might affect HIV treatment and care outcomes. Drawing on extant literature and theoretical underpinnings of syndemics, we provide a conceptual model that highlights how continuous traumatic …

Kob Interviews Joshua Kastenberg About Constitutional Rights During Covid-19, Joshua Kastenberg, Brittany Costello

Faculty Scholarship

No abstract provided.

Covid-19 Risk And Outcomes In Patients With Substance Use Disorders, Quangqiu Wang, David C. Kaelber, Rong Xu

Faculty Scholarship

The global pandemic of COVID-19 is colliding with the epidemic of opioid use disorders (OUD) and other substance use disorders (SUD) in the United States (US). Currently, there is limited data on risks, disparity, and outcomes for COVID-19 in individuals suffering from SUD. This is a retrospective case-control study of electronic health records (EHRs) data of 73,099,850 unique patients, of whom 12,030 had a diagnosis of COVID-19. Patients with a recent diagnosis of SUD (within past year) were at significantly increased risk for COVID-19 (adjusted odds ratio or AOR=8.699 [8.411–8.997], P<10−30), an effect that was strongest for individuals with OUD (AOR=10.244 [9.107–11.524], P<10−30), followed by individuals with tobacco use disorder (TUD) (AOR=8.222 ([7.925–8.530], P<10−30). Compared to patients without SUD, patients with SUD had significantly higher prevalence of chronic kidney, liver, lung diseases, cardiovascular diseases, type 2 diabetes, obesity and cancer. Among patients with recent diagnosis of SUD, African Americans had significantly higher risk of COVID-19 than Caucasians (AOR=2.173 [2.01–2.349], P<10−30), with strongest effect for OUD (AOR=4.162 [3.13–5.533], P<10−25). COVID-19 patients with SUD had significantly worse outcomes (death: 9.6%, hospitalization: 41.0%) than general COVID-19 patients (death: 6.6%, hospitalization: 30.1%) and African Americans with COVID-19 and SUD had worse outcomes (death: 13.0%, hospitalization: 50.7%) than Caucasians (death: 8.6%, hospitalization: 35.2%). These findings identify individuals with SUD, especially individuals with OUD and African Americans, as having increased risk for COVID-19 and its adverse outcomes, highlighting the need to screen and treat individuals with SUD as part of the strategy to control the pandemic while ensuring no disparities in access to healthcare support.

The Affordable Care Act: Up For A Final Vote?, Wendy K. Mariner

Faculty Scholarship

For more than a decade, the minimum essential coverage requirement, commonly known as the individual mandate, has been a key point of controversy over the ACA, symbolizing ideological and political disagreements over government assistance to low-income populations, federal regulation of private industry, and the legacy of President Obama. 26 U.S.C. §5000A(a) requires everyone (with exceptions) to be covered by a private or public health benefit program meeting ACA standards. 26 U.S.C. §5000A(b) requires those who are not so covered to pay a fee (“shared responsibility payment”) to the Treasury. 26 U.S.C. §5000A(c) sets forth the amount of that fee.

Can Lessons From The Covid-19 Pandemic Help Define A Strategy For Global Pediatric Radiology Education?, Jennifer Lynn Nicholas

Faculty Scholarship

No abstract provided.

Twenty Things Real Estate Attorneys Can Do To Not Mess Up A Section 1031 Exchange (Part 2: Items 11-20), Bradley T. Borden

Faculty Scholarship

No abstract provided.

Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane Ginsburg, Irene Calboli

Faculty Scholarship

This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, …

Quantifying The Decrease In Emergency Department Imaging Utilization During The Covid-19 Pandemic At A Multicenter Healthcare System In Ohio, Keval D. Parikh, Nikhil H. Ramaiya, Elias G. Kikano, Sree Harsha Tirumani, Jonathan Pierce, Carl Butcher, Jeffrey L. Sunshine, Donna M. Plecha

Faculty Scholarship

PURPOSE: To illustrate the change in emergency department (ED) imaging utilization at a multicenter health system in the state of Ohio during the COVID-19 pandemic. METHODS: A retrospective observational study was conducted assessing ED imaging volumes between March 1, 2020, and May 11, 2020, during the COVID-19 crisis. A rolling 7-day total value was used for volume tracking and comparison. Total imaging utilization in the ED was compared with new COVID-19 cases in our region. Utilization was first categorized by modality and then by plain films and computed tomography (CT) scans grouped by body part. CT imaging of the chest …