Law Commons^™

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

The Relevance Of Fatf's Recommendations And Fourth Round Of Mutual Evaluations To The Legal Profession, Laurel S. Terry, Llerena Robles, Jose Carlos

Faculty Scholarly Works

More than two hundred countriesin the world have agreed to abide by the anti-money laundering ("AML") recommendations developed by the Financial Action Task Force ("FATF"), which is an intergovernmental organization. This Article focuses on the potential impact on the legal profession of FATF's fourth round of mutual evaluations. During these mutual evaluations, which currently are underway, FATF-affiliated countries examine each other's compliance with the FATF Recommendations and recommend follow-up action. This Article first presents the legal profession-related results from the completed Mutual Evaluation Reports. A number of these FATF Reports recommend changes that include requiring lawyers to report suspicious client …

Prophylactic Merger Policy, Herbert J. Hovenkamp

All Faculty Scholarship

An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there …

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

All Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of …

Quest For Relevance: Whither The Asean Charter In Shaping A Shared Regional Identity And Values, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Promulgated in 2007, the Charter of the Association of Southeast Asian Nations (ASEAN) reaffirms ASEAN’s longstanding policy of non-interference in member-states’ internal affairs and the retention of consultation and consensus as fundamental tenets of decision-making in ASEAN. This essay considers the role of soft law in the interpretation and development of the ASEAN Charter. It also considers whether the Charter will help ASEAN achieve integration as well as promote democracy, human rights and development in an immensely diverse region comprising half a billion people. The essay argues that although the Charter is a binding legal instrument, the text enables a …

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

All Faculty Scholarship

The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …

Enhancing Your Intelligence Agency Information Resource Iq: Pt. 4: National Geospatial Intelligence Agency (Ngia), National Intelligence University (Niu), And National Reconnaissance Office (Nro), Bert Chapman

Libraries Faculty and Staff Presentations

Webinar presentation on publicly accessible information resources produced by the U.S. National Geospatial Intelligence Agency (NGIA), National Intelligence University (NIU), and National Reconnaissance Office. Places significant emphasis on missions of these agencies, their historical accomplishments, coverage of their educational activity, and information on the technologies they have used and are currently using to fulfill their institutional objectives.

Legalization Of Physician-Assisted Suicide For Increased Patient Autonomy, Morgan Mcenroe

Religion: Student Scholarship & Creative Works

This essay features an assessment of the various factors which play into the argument for legalization of physician-assisted suicide (PAS) in the United States for increased patient autonomy. Arguments for legalization of PAS as a means of end-of-life care remain separate from voluntary euthanasia. National legalization of PAS, for this fundamental principle of hospice care, is necessary to allow a choice to those in their final stages of life of how they wish to leave. If the values of PAS advocates are maximization of autonomy and minimization of suffering, then it follows that the chronically depressed, as well as patients …

The Securities Law Implications Of Financial Illiteracy, Lisa Fairfax

All Faculty Scholarship

Every financial literacy study conducted over the last few decades concurs: Americans, including American investors, are financially illiterate. This Article argues that America’s financial illiteracy poses a significant, widespread, and long-term challenge for our federal securities regime because that regime is premised almost entirely on disclosure as the best form of investor protection and, by extension, on investors’ ability to understand disclosure. By advancing a typology of investors and their disclosure needs, this Article further argues that we may have significantly underestimated the extent of the financial illiteracy problem based on at least two flawed assumptions. First, we have presumed …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Judicious Imprisonment, Gregory Jay Hall

All Faculty Scholarship

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

An Analysis Of The Universal Home Care Program: Considerations For Implementation With The Context Of Maine's Existing Ltss Programs, Eileen J. Griffin Jd, Elizabeth C. Gattine Jd, Louise Olsen, Stuart Bratesman Mpp

Disability & Aging

A citizen initiative on the November 2018 ballot (Question 1, An Act to Establish Universal Home Care for Seniors and Persons with Disabilities) would establish a "Universal Home Care Program" (UHC Program) to serve older adults and persons with a disability living in Maine. This report does not constitute either support for or opposition to the referendum but is intended as an independent assessment of how the UHC Program could be implemented if it were to be approved by Maine voters. This analysis focuses on the implications of the UHC Program within the context of the Medicaid and …

Hospital Mergers And Public Accountability: Tennessee And Virginia Employ A Certificate Of Public Advantage, Erin C. Fuse Brown

Faculty Publications By Year

No abstract provided.

Building An Evidence-Based, Holistic Approach To Advancing Integrated Employment, Allison C. Hall, John Butterworth, Jean Winsor, John Kramer, Kelly Nye-Lengerman, Jaimie Ciulla Timmons, Thinkwork! At The Institute For Community Inclusion At Umass Boston

ThinkWork! Publications

Since the introduction of supported employment in the Developmental Disabilities Act of 1984 and the Rehabilitation Act Amendments of 1986, there has been continued development and refinement of best practices in employment services and supports. Progress includes creative outcomes for individuals with significant support needs including customized jobs and self-employment, community rehabilitation providers that have shifted emphasis to integrated employment, and states that have made a substantial investment in Employment First policy and strategy. Despite these achievements, the promise of integrated employment remains elusive for the majority of individuals with intellectual and developmental disabilities. The number of individuals supported in …

The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow

All Faculty Scholarship

In this report, Shakow explains how a decentralized autonomous organization functions and interacts with the U.S. tax system and presents the many tax issues that these structures raise. The possibility of using smart contracts to allow an entity to operate totally autonomously on a blockchain platform seems attractive. However, little thought has been given to how such an entity can comply with the requirements of a tax system. The DAO, the first major attempt to create such an organization, failed because of a programming error. If successful examples proliferate in the future, tax authorities will face significant problems in getting …

The Effect Of Proposed Changes In Federal Public Charge Policy On Latino U.S. Citizen Children In Massachusetts, Fabián Torres-Ardila, Phillip Granberry, Iris Gómez, Vicky Pulos

Gastón Institute Publications

We estimate the number of U.S.-born Latino children that could be potentially affected by proposed Trump Administration changes greatly expanding the scope of the “public charge” test as a basis for denying noncitizens admission to the U.S. or adjustment to lawful permanent resident status. In addition to reducing family-based immigration, the proposed rule’s association of public benefits with adverse immigration consequences is widely expected to cause a drop in public benefit participation not just by noncitizens but by their U.S. citizen children as well. If this proposed change is implemented, Latino families – which include both noncitizen families and “mixed …

The Salience Theory Of Consumer Financial Regulation, Natasha Sarin

All Faculty Scholarship

Prior to the financial crisis, banks’ fee income was their fastest-growing source of revenue. This revenue was often generated through nefarious bank practices (e.g., ordering overdraft transactions for maximal fees). The crisis focused popular attention on the extent to which current regulatory tools failed consumers in these markets, and policymakers responded: A new Consumer Financial Protection Bureau was tasked with monitoring consumer finance products, and some of the earliest post-crisis financial reforms sought to lower consumer costs. This Article is the first to empirically evaluate the success of the consumer finance reform agenda by considering three recent price regulations: a …

U.S. Government Aviation Safety Information Resources, Bert Chapman

Libraries Faculty and Staff Presentations

Presentation covering U.S. Government aviation safety information resources. Topics addressed include U.S. laws,legislation, regulations, court cases, information resources from agencies such as the Federal Aviation Administration, Transportation Security Administration, National Aeronautics and Space Administration, congressional aviation oversight committees and congressional support agencies including the Congressional Budget Office, Congressional Research Service, and Government Accountability Office.

The Persistent Labor Market Effects Of A Criminal Conviction And “Ban The Box” Reforms, Joshua M. Congdon-Hohman

Economics Department Working Papers

Past literature has established that individuals who have been incarcerated face difficulties reentering the work force following their release, while finding and keeping a job can significantly reduce recidivism amongst individuals with prior criminal convictions. In attempt to improve employment outcomes, many local and state governments in the United States have initiated "Ban the Box" regulations. These initiatives delay inquiries regarding criminal history on job applications. Versions of ban the box regulations covering public sector employment have been enacted in 31 states and more than 150 local governments. Ban the box laws have included private employers in eleven states and …

Marginal Rates Under The Tcja, Reed Shuldiner

All Faculty Scholarship

In this report, Shuldiner argues that although the Tax Cuts and Jobs Act appears to offer an across-the board reduction in individual marginal tax rates augmented by an additional 20 percent reduction in rates on unincorporated business income, the situation is significantly more complex.

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

All Faculty Scholarship

In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …

The Massachusetts Paid Leave Program: What Workers Can Expect To Pay And Receive, Randy Albelda, Alan Clayton-Matthews

Publications from the Center for Women in Politics and Public Policy

On June 28, 2018, Massachusetts became only the sixth state in the country to provide partial wage replacement to workers that need to leave work for a serious health condition, the birth of a child, to bond with a new child, or to care for a seriously ill family member. The new law is slated to be implemented in 2019 with payments while on leave to begin in 2021. This brief outlines the key elements of the new Massachusetts paid leave program and discusses the amounts workers at various wage levels will contribute and the level of benefits they will …

1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Election Administration Within The Sphere Of Politics: How Bureaucracy Can Facilitate Democracy With Policy Decisions, Nicholas S. Martinez

FIU Electronic Theses and Dissertations

Public bureaucracy finds itself in a strange place at the intersection of political science and public administration. Political science finds that, within representative democracy, discretion granted to bureaucrats threatens the nature of democracy by subverting politicians who represent the will of the people – bureaucracy vs democracy. At the same time, public administration holds that, in the interest of promoting democracy, bureaucracy should be objective in its implementation of policy in a way that eliminates the influence of politics from decision-making – politics vs bureaucracy. Those positions are seemingly contradictory in nature. From one perspective, bureaucracy is undemocratic because it …

Military Justice: A Very Short Introduction (Book Review), Mark Patrick Nevitt

All Faculty Scholarship

This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad.

The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature. …

The Ethics Of Medicaid’S Work Requirements And Other Personal Responsibility Policies, Harald Schmidt, Allison K. Hoffman

All Faculty Scholarship

Breaking controversial new ground, the Centers for Medicare & Medicaid Services (CMS) recently invited states to consider establishing work requirements as a condition of receiving Medicaid benefits. Noncompliant beneficiaries may lose some or all benefits, and if they do, will incur higher spending if they have to pay for medical care out of pocket. Current evidence suggests work requirements and related policies, which proponents claim promote personal responsibility, can create considerable risks of health and financial harm in vulnerable populations. Concerns about implementing these policies in Medicaid have been widely expressed, including by major physician organizations, and others have examined …

Was The Amt Effectively Repealed?, Reed Shuldiner

All Faculty Scholarship

The individual alternative minimum tax (AMT) was a much disliked feature of the tax law prior to the Tax Cuts and Jobs Act (TCJA). Yet, despite repeated promises to repeal the AMT as part of tax reform, the TCJA dropped AMT repeal in favor of increasing the AMT exemption and its phaseout threshold. The question raised by this development is whether the AMT changes should be viewed as yet another stop-gap tweak of the AMT or whether the changes should be viewed as returning the AMT to its roots as a tax on high-income taxpayers using excessive loopholes. In this …

Protecting Children? Assessing The Treatment Of Unaccompanied Minors In The U.S., Chiara Galli

Latino Public Policy

In the summer of 2014, unprecedented numbers of unaccompanied minors fleeing violence in El Salvador, Guatemala and Honduras arrived in the U.S. seeking refuge. Current U.S. immigration law affords certain legal protections to children who migrate alone from non-contiguous countries, allowing them to be initially admitted to the U.S. To avoid deportation and remain in the country long-term, however, they must successfully apply for humanitarian relief from deportation. This interview-based study traces these children’s experiences navigating this legal process and interacting with different branches of the US immigration bureaucracy.

The Surveillance Gap: The Harms Of Extreme Privacy And Data Marginalization, Michele Gilman, Rebecca Green

Faculty Publications

We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to …

Terrorism Risk Insurance: Is It Really Working?, Rebecca Demarest

Honors Projects in Mathematics

This paper investigates terrorism risk insurance in the United States as well as those programs offered in other countries throughout the world. In the United States, particular attention is devoted to the interaction of government with private insurers to maintain an effective insurance program. An analysis is performed comparing terrorism insurance before and after the attacks on the World Trade Center on September 11, 2001. The paper looks into actual terrorist events that have occurred focusing on 56 world-wide events that are associated with property losses greater than $10 million. This paper not only investigates the losses that were incurred …