Digital Commons Network^™

Understanding The Failure Of Health-Care Exceptionalism In The Supreme Court's Obamacare Decision, Abigail Moncrieff

Faculty Scholarship

On June 28, 2012, a mere century after the first presidential proposal for national health insurance, the Supreme Court issued a resounding victory for President Obama and for health-care reform generally, upholding the Patient Protection and Affordable Care Act against a serious constitutional challenge. Nevertheless, the Court also struck a potential blow to future health-care reform efforts. A majority of the Court refused to accept the Solicitor General’s argument that health care is a unique market with unique regulatory needs that justify special constitutional treatment. The failure of health-care exceptionalism in the Court’s opinion might render future reform efforts more …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Faculty Scholarship

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Data Collection And The Regulatory State, Ahmed Ghappour

Faculty Scholarship

The following remarks were given on January 27, 2017 during the Connecticut Law Review’s symposium, “Privacy, Security & Power: The State of Digital Surveillance.” Hillary Greene, the Zephaniah Swift Professor of Law at the University of Connecticut School of Law, offered introductory remarks and moderated the panel. The panel included Dr. Cooper, Associate Professor of Law and Director of the Program on Economics & Privacy at Antonin Scalia Law School at George Mason University, Professor Ghappour, Visiting Assistant Professor at UC Hastings College of the Law, Attorney Lieber, Senior Privacy Policy Counsel at Google, and Dr. Wu, Professor of Law …

Virtue, Positive Psychology, And Religion: Consideration Of An Overarching Virtue And An Underpinning Mechanism, Lindsey M. Root Luna, Daryl R. Vantongeren, Charlotte Witvliet

Faculty Scholarship

The virtues are a central focus of research at the intersection of positive psychology and the psychology of religion and spirituality. Humility, patience, and gratitude are addressed in the target articles of this special issue. Beyond examining each individual virtue, we argue here that the connections among virtues also warrant empirical attention. Specifically, we explain the unity of the virtues thesis, which suggests that individual virtues may be a part of a larger overarching construct, which we propose may be practical wisdom, or simply general virtuousness. Similarly, we propose that a common mechanism, such as automatic self-regulation, may facilitate these …

Do Economic Conditions Drive Dip Lending?: Evidence From The Financial Crisis, Frederick Tung

Faculty Scholarship

When contemplating Chapter 11, the first step for many firms is to seek financing for their continuing operations in bankruptcy. Because such financing would otherwise be hard to find, the Bankruptcy Code authorizes debtors to offer sweeteners to debtor-in-possession (DIP) lenders. These inducements can be highly effective in attracting financing. But because these sweeteners are thought to come at the expense of other stakeholders, the Code permits these inducements only if the judge determines that no less generous a package would have been sufficient to obtain the loan.

Anecdotal evidence suggests that the use of certain controversial inducements—I focus on …

Attitudes Toward Antipsychotic Treatment Among Patients With Bipolar Disorders And Their Clinicians: A Systematic Review, Martha Sajatovic

Faculty Scholarship

Introduction: Antipsychotics are recommended as first-line therapy for acute mania and maintenance treatment of bipolar disorder; however, published literature suggests their real-world use remains limited. Understanding attitudes toward these medications may help identify barriers and inform personalized therapy. This literature review evaluated patient and clinician attitudes toward the use of antipsychotics for treating bipolar disorder. Materials and methods: A systematic search of the Cochrane Library, Ovid MEDLINE, Embase, and BIOSIS Previews identified English language articles published between January 1, 2000, and June 15, 2016, that reported attitudinal data from patients, health care professionals, or caregivers; treatment decision-making; or patient characteristics …

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

Brief For Washington Legal Foundation As Amici Curiae, Arguedas V. Seawright, Verónica C. Gonzales, Harrold D. Stratton

Faculty Scholarship

Mr. Seawright, a State Farm insurance agent, failed to provide adequate information to make informed decisions about whether (and in what amount) the plaintiffs should purchase uninsured or unknown motorist (“UM”) coverage. Plaintiffs brought a putative class action alleging that Mr. Seawright violated New Mexico’s Unfair Practices Act, NMSA 1978, §§ 57-1-1 to -19 (“the UPA”), which entitles anyone harmed by an unfair business practice to “bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater.” § 57-12-10(B).

Because § 57-12-10(B) of the UPA requires a loss of money or property” to …

Two Pests Overlap: Drosophila Suzukii (Diptera: Drosophilidae) Use Of Fruit Exposed To Halyomorpha Halys (Hemiptera: Pentatomidae), Megan Woltz, Nik G. Wiman, Jana C. Lee

Faculty Scholarship

Drosophila suzukii (Matsumura) (Diptera: Drosophilidae) and brown marmorated stink bug, Halyomorpha halys (Stål) (Hemiptera: Pentatomidae), are global economic pests that may co-occur on small fruits. We investigated whether fruit recently exposed to H. halys affected subsequent host use by D. suzukii. Laboratory no-choice and choice tests presented D. suzukii with H. halys-fed and unfed raspberries and blueberries immediately or 3 d after H. halys feeding. Resulting D. suzukii eggs, or larvae and pupae, were counted. The number of D. suzukii immatures among fed and unfed fruit was not significantly different in lab studies. There was no relationship between …

Error Disclosure Training And Organizational Culture, Jason M. Etchegaray, Thomas H. Gallagher, Sigall K. Bell, William M. Sage, Eric J. Thomas

Faculty Scholarship

Objective. Our primary objective was to determine whether, after training was offered to participants, those who indicated they had received error disclosure training previously were more likely to disclose a hypothetical error and have more positive perceptions of their organizational culture pertaining to error disclosure, safety, and teamwork.

Methods. Across a 3-year span, all clinical faculty from six health institutions (four medical schools, one cancer center, and one health science center) in The University of Texas System were offered the opportunity to anonymously complete an electronic survey focused on measuring error disclosure culture, safety culture, teamwork culture, and intention to …

Tiny Homes For The Homeless: A Return To Politically Engaged Community Economic Development Law?, Lisa T. Alexander

Faculty Scholarship

The evolution of community economic development (CED) over the past several decades has witnessed dramatic growth in scale and complexity. New approaches to development and related lawyering, and to philosophies underlying these approaches, challenge us to reimagine the framework of CED. From the early days of community development corporations to today’s sophisticated tools of finance and organization, this evolution reflects “why law matters” in pursuit of economic justice and opportunity. Change is visible in new approaches to enterprise development and novel grassroots initiatives that comprise a virtual “sharing economy,” as well as intensified advocacy around low-wage work and efforts to …

The Constitution Of Police Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Alternatives To Immigration Detention, Fatma E. Marouf

Faculty Scholarship

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

The Hounds Of Empire: Forensic Dog Tracking In Britain And Its Colonies, 1888-1953, Binyamin Blum

Faculty Scholarship

No abstract provided.

Anti-Bullying Policies And Disparities In Bullying: A State-Level Analysis, Mark L. Hatzenbuehler, Javier E. Flores, Joesph E. Cavanaugh, Angela Onwuachi-Willig, Marizen R. Ramirez

Faculty Scholarship

Recent research suggests that anti-bullying laws may be effective in reducing risk of bullying victimization among youth, but no research has determined whether these laws are also effective in reducing disparities in bullying. The aim of this paper was to evaluate the effectiveness of anti-bullying legislation in reducing disparities in sex- and weight-based bullying and cyberbullying victimization.

(Public) Health And Human Rights: Of Bridges And Matrixes, George J. Annas

Faculty Scholarship

Responding to President Trump's anti-Muslim executive order restricting immigration, the American Public Health Association (APHA) issued a press release recommitting the organization to human rights, noting that "health and human rights are inextricably linked." The organization underlined the basic human rights norm of nondiscrimination, noting that "all people should be valued equally, no matter their race, gender, sexual orientation, religion, immigration status, income or geographic region" and that whenever any groups of people are prevented from "experiencing basic human rights, all of our communities suffer" (APHA 2017). Human rights, especially the right to health, have also been at the core …

Arbitration And Fine Dining: Two Faces Of Efficiency, William W. Park

Faculty Scholarship

A restaurant meal might turn into disappointment either when good food arrives late, or when prompt service delivers bad food. The chef cannot become preoccupied with any one aspect of fine dining to the exclusion of others. Likewise, arbitral proceedings implicate proportionality and balance among a multitude of factors which can make the experience good or bad. Several elements play key roles in evaluating any arbitration, namely: accuracy, fairness, cost, speed, and award enforceability. An inevitable tension exists among these goals. Decisions reached quickly and cheaply will do few favors if the award gets it wrong on the substantive merits. …

Towards An International Right To Claim Innocence, Brandon L. Garrett

Faculty Scholarship

In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered …

A Randomized Controlled Trial Of Disclosing Genetic Risk Information For Alzheimer Disease Via Telephone, Peter J. Whitehouse, Melissa Barber Butson

Faculty Scholarship

Purpose: Telephone disclosure of genetic test results can improve access to services. To date, studies of its impact have focused on return of Mendelian risk information, principally hereditary cancer syndromes.Methods: In a multisite trial of Alzheimer disease genetic risk disclosure, asymptomatic adults were randomized to receive test results in person or via telephone. Primary analyses examined patient outcomes 12 months after disclosure.Results: Data from 257 participants showed that telephone disclosure occurred 7.4 days sooner and was 30% shorter, on average, than in-person disclosure (both P < 0.001). Anxiety and depression scores were well below cutoffs for clinical concern across protocols. Comparing telephone and in-person disclosure protocols, 99% confidence intervals of mean differences were within noninferiority margins on scales assessing anxiety, depression, and test-related distress, but inconclusive about positive impact. No differences were observed on measures of recall and subjective impact. Subanalyses supported noninferiority on all outcomes among apolipoprotein E (APOE) I 4-negative participants. Subanalyses were inconclusive for APOE I 4-positive participants, although mean anxiety and depression scores were still well below cutoffs for clinical concern. Conclusion: Telephone disclosure of APOE results and risk for Alzheimer disease is generally safe and helps providers meet demands for services, even when results identify an increased risk for disease.

The Extended Baryonic Halo Of Ngc 3923, Stacy S. Mcgaugh, J. Christopher Mihos

Faculty Scholarship

Galaxy halos and their globular cluster systems build up over time by the accretion of small satellites. We can learn about this process in detail by observing systems with ongoing accretion events and comparing the data with simulations. Elliptical shell galaxies are systems that are thought to be due to ongoing or recent minor mergers. We present preliminary results of an investigation of the baryonic halo-light profile, globular clusters, and shells/streams-of the shell galaxy NGC 3923 from deep Dark Energy Camera (DECam) g and i-band imaging. We present the 2D and radial distributions of the globular cluster candidates out to …

Status Epilepticus Due To Intraperitoneal Injection Of Vehicle Containing Propylene Glycol In Sprague Dawley Rats, Evon S. Ereifej, Seth M. Meade, Cara S. Smith, Keying Chen, Nanette Kleinman, Jeffrey R. Capadona

Faculty Scholarship

Published reports of status epilepticus due to intraperitoneal injection containing propylene glycol in rats are sparse. In fact, there are no reports specifying a maximum safe dose of propylene glycol through intraperitoneal administration. We report here a case of unexpected seizures in Sprague Dawley rats after receiving an intraperitoneal injection containing propylene glycol. Nine-week-old, 225-250 gram male rats were reported to experience tremor progressing to seizures within minutes after given injections of resveratrol (30 mg/kg) dissolved in a 40: 60 propylene glycol/corn oil vehicle solution by direct intraperitoneal (IP) slow bolus injection or via a preplaced intraperitoneal catheter. The World …

Is The "Act Of God" Dead?, Clifford J. Villa

Faculty Scholarship

In more than twenty years with the U.S. Environmental Protection Agency (EPA) before joining the legal academy, I saw many communities affected by fires, floods, hurricanes, earthquakes, and other natural disasters. However, I never saw a case where the act of God defense prevailed against environmental liability. Confirming this personal experience, I later learned that the number of reported cases where the act of God defense had prevailed against environmental liability, under all statutes and all federal circuits, was also exactly zero.

This raises two obvious questions: (1) why does the act of God defense so often fail? and (2) …

The Sailor, The Prostitute, The Pimp, And The Judge: Chasing Down The Loose Ends Of Koistinen V. American Export Lines, Inc., Robert Jarvis

Faculty Scholarship

Koistinen v. American Export Lines, Inc. is a case all admiralty law professors love to teach and all law students love to read.

Bitproperty And Commercial Credit, Christopher K. Odinet

Faculty Scholarship

In the past several years, the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets, ranging from Twitter and Facebook to YouTube and virtual world accounts, is nearly absolute. Indeed, by one account, Americans check social media over seventeen times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six- and seven-figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Faculty Scholarship

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Faculty Scholarship

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

A Particularly Serious Exception To The Categorical Approach, Fatma E. Marouf

Faculty Scholarship

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote …

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …

Money, Speech, And Chutzpah, Joel Gora

Faculty Scholarship

No abstract provided.

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.