Law Commons^™

Breaking The Cycle Of ‘Unequal Treatment’ With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah Yearby

Faculty Publications

Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 ("Title VI") and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act ("ACA") as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …

Introduction - Symposium Issue On Health Data Security Systems, Sharona Hoffman

Faculty Publications

Introduction to the Health Data Security System symposium 2012 Huston, TX.

Interstate Competition And The Race To The Top, Jonathan H. Adler

Faculty Publications

This essay, based on remarks at the 211 Federalist Society Student Symposium, discusses some of the benefits of federalism. Many of the benefits of federalism derive from interjurisdictional competition, as competition among jurisdictions is a powerful means to discover and promote welfare-enhancing policies. Decentralizing authority over various policy matters also leaves states free to account for regional variation and can facilitate policy discovery and entrepreneurship and reduce the risks of policy failures. While the arguments for decentralization are strong, there are persuasive justifications for federal intervention in some instances, such as the existence of interstate spillovers. Fears of a “race …

Corporate Governance: The Swedish Solution, George W. Dent

Faculty Publications

Sweden has changed its corporate governance system by delegating the nomination of corporate directors (and thus, in effect, ultimate control) to committees typically comprising representatives of each company’s largest shareholders. This system gives shareholders a degree of power “that only the most daring corporate governance initiatives in the rest of the world could even imagine.” By all accounts the change has been successful; no one is complaining about it.

In the United States investors have long been kept weak in corporate governance for fear that giving them a major role would damage corporations in numerous ways. The Swedish experience seems …

Balancing Privacy, Autonomy, And Scientific Needs In Electronic Health Records Research, Sharona Hoffman, Andy Podgurski

Faculty Publications

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces.

This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It …

Wilbur Leatherberry: Our Center Of Gravity, Peter M. Gerhart

Faculty Publications

Some lead with words; some with actions. Some lead with anger; some with authority. Some lead with attitude. Those who lead with attitude are precious few, made more precious because they are so few. Bill Leatherberry leads with attitude. He projects a quiet and reasoned confidence. He is unflappable and imperturbable. He projects calm and control, evidence of a sure faith that things will work out.

Laura Chisolm: Colleague, Peer, Friend, Jonathan L. Entin

Faculty Publications

Tribute to Laura Chisolm

Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin

Faculty Publications

Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH

The Individual Mandate And The Taxing Power, Erik M. Jensen

Faculty Publications

This article, prepared for a symposium at the Salmon P. Chase College of Law, Northern Kentucky University, considers whether the Taxing Clause provides an alternative constitutional basis, as some have recently argued, for the individual mandate in the Patient Protection and Affordable Care Act of 21 - the requirement, going into effect in 214, that most individuals acquire satisfactory health insurance or pay a penalty. The article concludes that the Taxing Clause arguments are misguided. At best, the Clause can provide authority for the penalty, not for the mandate as a whole. Furthermore, the article questions whether the penalty will …

A Comment On Commas, Erik M. Jensen

Faculty Publications

This article aims to get some respect for the underappreciated comma, using a New York Times book review to illustrate how misplaced punctuation can turn sense into nonsense.

Professional Power And The Standard Of Care In Medicine, Maxwell J. Mehlman

Faculty Publications

Since before the founding of the Republic, American medicine has been fighting a war to control the standard of care that physicians are expected to provide to their patients. It has waged battles on two fronts: against internal disagreements within the profession over what constitutes proper care, and against attempts to delineate the standard of care by forces outside the profession, such as private health insurers, the government, and the judicial system.

Supervisory Responsibility For The Office Of Legal Counsel, Avidan Y. Cover

Faculty Publications

In the wake of the notorious Justice Department Office of Legal Counsel (OLC) torture memoranda, various reforms have been proposed to prevent future erroneous and poorly reasoned legal opinions on matters of the utmost national importance. The need for reform is all the more pressing in a post-9/11 world in which the Executive Branch will continue to arrogate, often in secret, various national security-related powers. None of the proposals, however, addresses the supervisory role that Justice Department and other Executive Branch lawyers play in the formation of OLC opinions.

This Article argues that the failure to hold more senior government …

Planning For The Next Century Or The Next Week, Whichever Comes First, Erik M. Jensen

Faculty Publications

I look at long term planning in law schools.

Medical Decision Making By And On Behalf Of Adolescents: Reconsidering First Principles, B. Jessie Hill

Faculty Publications

The school nurse cannot give your teenage daughter an aspirin for her headache without your permission, but that same daughter can get an abortion without even informing you. Or can she? The obligations on medical personnel providing care to adolescents are famously indeterminate.

Two common-law presumptions have long lurked in the background, but, far from elucidating matters, those presumptions have contributed to the state of confusion. The first presumption is that, absent any special rule, children lack the legal authority to consent to medical treatment on their own. A parallel and corresponding presumption is that parents have a legal entitlement …

Confrontation, Experts, And Rule 703, Paul C. Giannelli

Faculty Publications

The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.

Drug-Drug Interaction Alerts: Emphasizing The Evidence, Sharona Hoffman, Andy Podgurski

Faculty Publications

Many analysts and users of contemporary clinical decision support ("CDS") systems have expressed grave concerns about the technology’s efficacy and functionality. Alerts generated by CDS systems are often inaccurate, and an excess of alerts leads some physicians to experience "alert fatigue" and to turn off CDS altogether. This article formulates recommendations to improve drug-drug interaction (DDI) alerts.

The paper comments upon a proposal by Susan Ridgely and Michael Greenberg, who call for the development of a consensus-based "clinically significant drug-drug interaction list" that could generate limited liability protection for users. We argue that instead of creating a list of always-contraindicated …

Universal Jurisdiction And The Crime Of Aggression, Michael P. Scharf

Faculty Publications

In June 2010 in Kampala, Uganda, the states that are party to the Statute of the International Criminal Court agreed to amend the ICC Statute to add the crime of aggression to the Court's jurisdiction. One of the key compromises that made this possible was the adoption of a U.S.-proposed “understanding” which provided that the aggression amendment should not be interpreted as creating a right for national courts to prosecute the crime of aggression under universal jurisdiction. If, however, national courts already possess the right to do so under customary international law, stemming from the Nuremberg precedent, then the understanding …

The Drugs Stop Here: A Public Health Framework To Address The Drug Shortage Crisis, Sharona Hoffman

Faculty Publications

Drug shortages are emerging as a major public health threat. Grave concern has been expressed by the medical community and government officials, and the crisis has been highlighted in recent media stories. Nevertheless, little has been written to date in the legal literature about the drug shortage crisis, and this timely article begins to fill this gap. It provides a thorough analysis of the origins and implications of the drug shortage problem and formulates a multi-layered approach to addressing it. The article argues that drug shortages result from a combination of market failures and regulatory constraints. It proposes a blend …

All For One And One For All: Informed Consent And Public Health, Jessica Wilen Berg

Faculty Publications

The concept of informed consent is well established in the field of bioethics, but its application is unclear in the area of public health. The increasing prevalence of public health interventions creates a need to analyze the scope of government power as it relates to individual choice. This Article explores three different types of public health measures in which individual choice has been limited: (1) environmental interventions; (2) classic public health interventions to prevent contagious disease; and (3) public health information reporting or use. The reasons for limiting informed consent vary depending on the context, and the implications for the …

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

Laura Chisolm: An Advocate And Ally, B. Jessie Hill

Faculty Publications

I worked with Laura Chisolm primarily in my capacity as Associate Director of the Center for Social Justice, of which she was the founding Director. Yet--as is probably true of many of my colleagues at the law school--I came to know and admire her most as a fellow faculty member, friend, and mentor. I will never forget the many kindnesses from Laura--not least of all the baby gift she sent me after my older daughter was born. It was a beautiful, fuzzy, hand-knit sweater that kept both my older daughter and my younger daughter warm for, literally, years. Where on …

Mass Murderers Discover Mass Murder: The Germans And Katyn, 1943, Kenneth F. Ledford

Faculty Publications

After the German army in 1943 discovered the graves of murdered Polish army officers in the Katyn Forest, Joseph Goebbels embarked upon a cynical publicity campaign to spread before the world the perils of Bolshevik success. But the Nazi discovery of Soviet crimes against leaders of Polish state and society elided the reality that from the very beginning of the German invasion of Poland, the SS had carried out identical mass murders of Polish intellectuals and other social leaders. Goebbels's campaign amounted to mass murderers ““uncovering” mass murders on the part of their adversaries and seeking cynically to use that …

Terrorism Financing Indicators For Financial Institutions In The United States, Richard K. Gordon

Faculty Publications

At least since the Financial Action Task Force (FATF) first published its Forty Recommendations, financial institutions in FATF-compliant jurisdictions have been required to implement preventive measures that require FIs to identify customers, establish client profiles, monitor for unusual transactions, review those transactions to see if there was suspicion that they involved the proceeds of crime and, if so, report the transaction to the authorities in the form of a suspicious transaction report (STR). When these requirements were first established, neither financial institutions nor their supervisors/regulators had much experience as to what in a client's profile and the client's patterns of …

City Of Arlington V. Fcc: Questioning Agency Authority To Determine The Scope Of Its Own Authority, Jonathan H. Adler

Faculty Publications

In City of Arlington v. FCC the Supreme Court will consider whether courts should defer to an agency’s determination of its own jurisdiction. Although the need for courts to defer to agency interpretations of ambiguous statutory provisions under Chevron v. NRDC is well-established, the Supreme Court has never decided whether so-called Chevron deference should apply to statutory provisions delineating the scope of agency jurisdiction. There are several reasons courts should not confer Chevron deference to agency interpretations of statutes that define or limit an agency’s jurisdiction. First, the conferral of Chevron deference is premised upon the existence of agency jurisdiction. …

The Promise Principle And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky

Faculty Publications

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of Contract law, have importantly contributed to rescuing Contract law from absorption into Tort law and from the imposition of externally imposed standards that are collective in origin. It makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this essay questions whether a promise centered system derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty …

The International Court Of Justice's Treatment Of Circumstantial Evidence And Adverse Inferences, Michael P. Scharf, Marqaux Day

Faculty Publications

This Article examines a vexing evidentiary question with which the International Court of Justice has struggled in several cases, namely: What should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Crime of Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence exclusively accessible by one party in these and other …

Foreword: Presidential Power And Foreign Affairs, Michael P. Scharf, Brittany E. Pizor

Faculty Publications

Foreword for the Wolf Family Foundation, Case Western Reserve's Frederick K. Cox International Law Center, the International Association of Penal Law (American National Section), the American Society of International Law, the International Law Association (American Branch), and the Public International Law and Policy Group conference Presidential Power and Foreign Affairs, Cleveland, OH, September 2012.

Katyn: Justice Delayed Or Justice Denied? Report Of The Cleveland Experts' Meeting, Michael P. Scharf, Maria Szonert-Binienda

Faculty Publications

Report of the Frederick K. Cox International Law Center and the Libra Institute, Inc. hosted a Symposium and Experts Meeting in commemoration of the 70th anniversary of the Katyn massacre, Cleveland, OH, February 4-5, 2011

Wetlands, Property Rights, And The Due Process Deficit In Environmental Law, Jonathan H. Adler

Faculty Publications

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands …