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Articles 61 - 89 of 89
Full-Text Articles in Law
Protecting Our Aging Retirees: Converting 401(K) Accounts Into Federally Guaranteed Lifetime Annuities, Lawrence A. Frolik
Protecting Our Aging Retirees: Converting 401(K) Accounts Into Federally Guaranteed Lifetime Annuities, Lawrence A. Frolik
Articles
America’s retirees are faced with a potential financial disaster. Economic security in retirement has long depended on Social Security, private savings and employer provided retirement plans. While much attention has been paid to the financial problems of Social Security and the lack of private saving for retirement, little attention has been paid to an alarming development in employer provided retirement plans: the likely inability of retirees during the long years of their retirement to successfully manage their retirement funds accumulated in 401(k) and similar accounts. We as a society have set up a funding system for retirement that assumes retirees …
Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman
Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman
Testimony
In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the …
Rescuing Baby Doe, Mary Crossley
Rescuing Baby Doe, Mary Crossley
Articles
The twenty-fifth anniversary of the Baby Doe Rules offers a valuable opportunity to reflect on how much has changed during the past two-and-one-half decades and how much has stayed the same, at least in situations when parents and physicians face the birth of an infant who comes into the world with its life in peril.
The most salient changes are the medical advances in the treatment of premature infants and the changes in social attitudes towards and legal protections for people with disabilities. The threshold at which a prematurely delivered infant is considered viable has advanced steadily earlier into pregnancy, …
'We, The Paparazzi': Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton
'We, The Paparazzi': Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton
Articles
In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation - the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …
Another Voice For The 'Dialogue': Federal Courts As A Litigation Course, Arthur D. Hellman
Another Voice For The 'Dialogue': Federal Courts As A Litigation Course, Arthur D. Hellman
Articles
The traditional course in "Federal Courts" - built on the model established by the great Hart and Wechsler casebook - focuses on issues of federalism, separation of powers, and institutional competence. That focus provides a powerful intellectual model for organizing the materials that make up the field of study, and it is hard to imagine anyone teaching a Federal Courts course today without drawing heavily on that model. But the traditional model is deficient in one important respect. Most of the students who take a Federal Courts course do so because they think it will help them to practice law …
What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake
What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake
Articles
This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …
When Judges Are Accused: An Initial Look At The New Federal Judicial Misconduct Rules, Arthur D. Hellman
When Judges Are Accused: An Initial Look At The New Federal Judicial Misconduct Rules, Arthur D. Hellman
Articles
On March 11, 2008, the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, approved the first set of nationally binding rules for dealing with accusations of misconduct by federal judges. The new rules implement recommendations made by a committee chaired by Supreme Court Justice Stephen Breyer. The Breyer Committee found that although the judiciary has been doing a very good overall job in handling complaints against judges, the error rate in high-visibility cases is far too high.
The new regulatory regime comes into existence at a time when federal judges have been accused of …
Suppose The Schindlers Had Won The Schiavo Case, Alan Meisel
Suppose The Schindlers Had Won The Schiavo Case, Alan Meisel
Articles
In this Article, I will identify and discuss the harms that would have occurred had the Schindlers won the Schiavo Case - the harms both to Terri Schiavo in the private case and the larger set of harms to public policy in the public case. The Schindlers fought Michael Schiavo on a variety of battlegrounds - the Florida courts, the Florida legislative and executive branches, the federal courts, and eventually Congress. Had they definitively prevailed in any of these forums, the consequences for end-of-life decisionmaking would have been largely the same. Had they prevailed in Congress or even in the …
Sending The Bureaucracy To War, Elena Baylis, David Zaring
Sending The Bureaucracy To War, Elena Baylis, David Zaring
Articles
Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law.
We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to …
Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.
Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.
Articles
The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …
The Preventive Paradigm And The Perils Of Ad Hoc Balancing, Jules Lobel
The Preventive Paradigm And The Perils Of Ad Hoc Balancing, Jules Lobel
Articles
This article addresses the claim that times of crisis require jettisoning legal rules in favor of ad hoc balancing. Part I demonstrates that the coercive preventive measures adopted by the Bush administration in carrying out the War on Terror discarded clear legal rules in favor of ad hoc balancing and relied on suspicions rather than objective evidence. Part II examines the claims of prevention paradigm supporters that ad hoc balancing is necessary in the new post-911 era in order to reach decisions that correctly weigh the values of liberty and peace versus national security. This article argues that discarding the …
Solving The Puzzle Of Mead And Christensen: What Would Justice Stevens Do?, Amy J. Wildermuth
Solving The Puzzle Of Mead And Christensen: What Would Justice Stevens Do?, Amy J. Wildermuth
Articles
One area in which I teach and have become increasingly interested over the last few years is administrative law. Although one might expect at a symposium honoring the jurisprudence of Justice Stevens that I might focus solely on his most famous administrative law opinion, Chevron v. Natural Resources Defense Council, Inc., and its two-step test that requires a court to defer to a reasonable agency interpretation if the statute is ambiguous, I have instead decided to take on the United States Supreme Court's more recent consideration of what to do with those actions agencies take that, unlike the bubble rule …
European Union's New Role In International Private Litigation, Ronald A. Brand
European Union's New Role In International Private Litigation, Ronald A. Brand
Articles
No abstract provided.
A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.
A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.
Articles
Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.
Racial profiling is not only a denial of the right to equal treatment, but …
Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.
Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.
Articles
The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.
One such …
Reasonable Accommodation As Part And Parcel Of The Antidiscrimination Project, Mary Crossley
Reasonable Accommodation As Part And Parcel Of The Antidiscrimination Project, Mary Crossley
Articles
Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has …
Community Competence For Matters Of Judicial Cooperation At The Hague Conference On Private International Law: A View From The United States, Ronald A. Brand
Community Competence For Matters Of Judicial Cooperation At The Hague Conference On Private International Law: A View From The United States, Ronald A. Brand
Articles
The Amsterdam Treaty's introduction of Article 65 into the European Community Treaty took little time to achieve practical importance. In fact, the questions were practical as early as they were theoretical. A 1992 request by the United States that the Hague Conference on Private International Law negotiate a global convention on jurisdiction and the recognition of civil judgments resulted in a laboratory for the new-found competence of the Community. Thus, negotiations already underway--which included delegations from all 15 EU Member States--were affected significantly by the transfer of competence from those states to the Community institutions for matters under consideration at …
Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley
Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley
Articles
This Article will adopt the perspective of individuals with disabilities in their encounters with the health care finance and delivery system in the United States, and will pose the question of what the past decade has shown the ADA to mean (or not mean) for those individuals' ability to seek, receive, and pay for effective health care services. To that end, this Article will provide an overview of three broad areas on which the ADA has had varying degrees of impact.
Part II of the Article will examine how the ADA has affected the rights of an individual with a …
Dueling Class Actions, Rhonda Wasserman
Dueling Class Actions, Rhonda Wasserman
Articles
When multiple class action suits are filed on behalf of the same class members, numerous problems ensue. Dueling class actions are confusing to class members, wasteful of judicial resources, conducive to unfair settlements, and laden with complex preclusion problems. The article creates a typology of different kinds of dueling class actions; explores the problems that plague each type; considers the effect the Supreme Court's decision in Matsushita Electric Industrial Co. v. Epstein, 516 U.S. 367 (1996), has had on these problems; evaluates the efficacy of existing judicial tools to curb them; and proposes an array of possible solutions. The more …
Pharmacists, Physician-Assisted Suicide, And Pain Control, Alan Meisel
Pharmacists, Physician-Assisted Suicide, And Pain Control, Alan Meisel
Articles
One of the unintended consequences of the decade-old public debate about the legalization of physician-assisted suicide is an increased interest in pain control for terminally ill patients. Pain control and other aspects of palliative care are seen not only as medically desirable but as necessary to assure so as to minimize the pressure to legalize physician-assisted suicide or utilize physician-assisted suicide even if not legal. Most of the public debate has centered on the role of physicians in assisted suicide.
However, there has been very little discussion about the role that health care professionals - - other than physicians -- …
Managed Care, Autonomy, And Decision-Making At The End-Of-Life, Alan Meisel
Managed Care, Autonomy, And Decision-Making At The End-Of-Life, Alan Meisel
Articles
Some argue that legalizing physician-assisted suicide poses intolerable risks, especially as we move from a system of fee-for-service health care to managed care. Although we need to be concerned about physician-assisted suicide in the context of managed care, physician-assisted suicide poses risks in a fee-for-service system too. In addition, we need to be concerned about the risks posed not only by physician-assisted suicide but also by the well-accepted practice of forgoing life-sustaining treatment. Instead of focusing on the manner of hastening death or the type of health care system, we need to show more concern for protections to assure that …
The Disability Kaleidoscope, Mary Crossley
The Disability Kaleidoscope, Mary Crossley
Articles
The question of whom our society truly wants to protect from adverse discrimination based on bodily difference is ultimately a question for the body politic. The aim of this article, by contrast, is to use the analytical tools provided by scholars in the field of disability studies to scrutinize how lawmakers to date have understood the concept of impairment as one form of bodily difference. By viewing administrative and judicial treatments of impairment through a disability studies lens, I have sought to give the disability kaleidoscope a turn and thus to provide the reader with an altered view of impairment …
Due Process, Jurisdiction And A Hague Judgments Convention, Ronald A. Brand
Due Process, Jurisdiction And A Hague Judgments Convention, Ronald A. Brand
Articles
Due process is perhaps one of the most misunderstood concepts in the U.S. legal system, especially as it appears to those outside the United States. For lawyers trained in the United States, 'due process' becomes a phrase with special meaning resulting from the study of a number of judicial decisions, especially those of the U.S. Supreme Court. For lay persons, and for lawyers from other countries, discussions of 'due process' may not always provide a clear understanding of what that phrase means in the U.S. legal system. This paper discusses the historical development of the concept of due process in …
Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley
Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley
Articles
This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …
Direct Effect Of International Economic Law In The United States And The European Union, Ronald A. Brand
Direct Effect Of International Economic Law In The United States And The European Union, Ronald A. Brand
Articles
One of the most important and challenging issues in international law is the manner in which we address the relationship between the individual and the international legal system. The traditional framework, in which we set a "sovereign" government between the individual and the development and application of the rules, is no longer sufficient in all circumstances. The fact that governments feel insecure or threatened by the application of international legal rules in actions brought by individuals is not sufficient reason to preclude that development. The purpose of government is not to perpetuate traditional power structures, it is to provide security …
Medical Futility And Disability Discrimination, Mary Crossley
Medical Futility And Disability Discrimination, Mary Crossley
Articles
The concept of medical futility, which originally developed in the medical literature as a basis for allocating between physician and patient decisional authority regarding end-of-life treatment, is increasingly appearing in discussions regarding possible methods of containing medical costs by limiting treatment. This use of medical futility as a rationing mechanism, whether by a state Medicaid program or by a hospital, raises concerns regarding its impact on persons with severe disabilities near the end of life. This article considers how the applicability of the Americans with Disabilities Act to cost-conscious futility policies might be analyzed. After developing arguments that proponents and …
External Sovereignty And International Law, Ronald A. Brand
External Sovereignty And International Law, Ronald A. Brand
Articles
This essay addresses the need to redefine current notions of sovereignty. It returns to earlier concepts of subjects joining to receive the benefits of peace and security provided by the sovereign. It diverges from most contemporary commentary by avoiding what has become traditional second-tier social contract analysis. In place of a social contract of states, this redefinition of sovereignty recognizes that international law in the twentieth century has developed direct links between the individual and international law. The trend toward democracy as an international law norm further supports discarding notions of a two-tiered social contract relationship between the individual and …
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Articles
In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …
Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, Ronald A. Brand
Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, Ronald A. Brand
Articles
When international trade and investment increase, so does the need for satisfactory means of dispute resolution. Dispute resolution in national courts requires that litigants consider not only the likelihood of a favorable judgment but also the ability to collect on that judgment. In cases where the defendant’s assets lie in another jurisdiction, collection is possible only if the second jurisdiction will recognize the first jurisdiction’s judgment.
In the international arena, enforcement of United State judgments overseas is often possible only if the United States court rendering the judgment would enforce a similar decision of the foreign enforcing court. This reciprocity …