Law Commons^™

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

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This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In general, 2006 was a good year to be a defendant in environmental cases that reached the Eleventh Circuit. The court placed a narrow construction on operator liability for corporate parents under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and backed agency interpretations of the Clean Air Act (“CAA”) regulations in the face of challenges to their interpretation and use. In an issue of first impression, the court held that the agency’s failure to carry out a nondiscretionary duty under the Endangered Species Act (“ESA”) constituted a one-time, and not a continuing, violation for purposes of applying the …

The Fragility Of The Affordable Care Act's Universal Coverage Strategy, Elizabeth Weeks Leonard

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This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

Reforming The Taxation Of Deferred Compensation, Gregg D. Polsky, Ethan Yale

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Executive pay is currently a topic of significant interest for policymakers, academics, and the popular press. Just weeks ago, in reaction to widespread press reports and academic criticism of extravagant executive perquisites, the SEC proposed new regulations designed to change fundamentally the manner in which executive compensation is reported to share-holders. Despite all of this attention, one significant aspect of executive deferred compensation has gone virtually unnoticed - the federal tax rules governing this form of compensation are fundamentally flawed and must be extensively over-hauled. These rules are flawed because they often create a significant incentive for companies and their …

Lessons From Katrina: Response, Recovery And The Public Health Infrastructure, Elizabeth Weeks

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This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

Nonjurisdictionality Or Inequity, Elizabeth Chamblee Burch

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This short piece, written for the Northwestern University Law Review Colloquy, responds to Professor Scott Dodson's comment on Bowles v. Russell, titled Jurisdictionality and Bowles v. Russell. Dodson proposes to navigate a path between Justice Thomas's majority opinion and Justice Souter's dissent by embracing Thomas's use of mandatory and Souter's argument for deeming appellate deadlines nonjurisdictional. Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense. It is the mandatory aspect of Professor Dodson's proposal that concerns me; it leaves no …

Transaction Costs And Patent Reform, Paul J. Heald

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This article considers current proposals for patent law reform in light of a simple theory about intellectual property law: In a world without transactions costs, the assignment of property rights is not necessary to stimulate the optimal production of creative goods. Because potential users of inventions could contract for their creation, a compelling justification for granting property rights in these intangibles is the reduction of real-world transaction and information costs that hinder, or make impossible, contract formation between users and creators. Proposals for patent law reform, therefore, should be evaluated by whether a change in legal rights, or in the …

Standard Setting, Patents, And Access Lock-In: Rand Licensing And The Theory Of The Firm, Joseph S. Miller

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Many leading voluntary standard-setting organizations (SSOs) have adopted intellectual property (IP) policies under which participants must promise to license any patents on technology that they contribute to a standard, and to do so on reasonable and nondiscriminatory terms (RAND). The standard setting literature includes a substantial focus on the widespread use of this RAND promise. A common refrain in these analyses of the RAND promise is that its meaning is dysfunctionally uncertain. We know more about the RAND promise, however, than the existing literature suggests. I show that we already know the RAND promise's core meaning, and why it remains …

Patent Ships Sail An Antitrust Sea, Joseph S. Miller

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This brief essay arises from my participation in an April 2006 conference at Seattle University Law School, entitled At the Intersection of Antitrust and Intellectual Property Law: Looking Both Ways to Avoid a Collision. This intersection metaphor is a common one for describing antitrust law's relationship with intellectual property law, among both courts and commentators. This essay explores a different metaphor: patent ships sail an antitrust sea, protecting those aboard from competition's harshest dangers - but only for a time. The nautical metaphor evokes three ideas that the crossroads metaphor does not. First, vigorous competition is the pervasive, baseline reality; …

Hell Hath No Fury Like An Investor Scorned: Retribution, Deterrence, Restoration, And The Criminalization Of Securities Fraud Under Rule 10b-5, Joan Macleod Heminway

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This brief article focuses attention on the ineffectual nature of prosecutions of corporations and their insiders - generally, officers and directors - for securities fraud under Rule 10b-5. Specifically, the article begins by briefly summarizing the nature of enforcement actions and related penalties under Rule 10b-5. Next, the article argues that, as currently conceived and executed, criminal enforcement actions under Rule 10b-5 are ineffective as a means of achieving retribution, as deterrents of undesirable behavior, and as enforcement vehicles that vindicate the policies underlying Rule 10b-5. As a means of addressing these criticisms, the article suggests possible enhancements to Rule …

Doomed To Re-Repeat History: The Triangle Fire, The World Trade Center Attack, And The Importance Of Strong Building Codes, Gregory M. Stein

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Imagine this: You are a member of a commission charged with recommending changes to the building code of a densely-packed urban city, say New York. Your recommendation is that high-rise office buildings are overly safe and that your city should relax its codes. That, more or less, is what happened in New York in 1968. Fifty-seven years after the Triangle Waist Company fire, in which 146 people trapped in the upper floors of an unsafe building burned, jumped, or fell from a collapsed fire escape to their deaths, New York City relaxed its safety rules for high-rise buildings.

In his …

Assignment Of Receivables Under Article 9: Structural Incoherence And Wasteful Filing, Thomas E. Plank

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No abstract provided.