Law Commons^™

Breaking Down Barriers To Creating Safety-Net Accountable Care Organizations: State Statutory And Regulatory Issues, Matthew Chayt, Ann Marie Marciarille, Noah Metz, Anita Pandhoh, David Vernon

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This report focuses on three major state law issues: tort liability, scope of practice, and the corporate practice of medicine doctrine. The authors argue that statutory and regulatory schemes need to be re-examined to ensure that Accountable Care Organizations (ACOs) can form. For example, lawmakers should ask, in an age when health care is changing dramatically in America, whether the corporate practice of medicine doctrine should be preserved. The authors offer California as an example of a state that, like many others, has taken tentative steps toward health care innovation but needs to act decisively to ensure that the promise …

Frankfurter’S Champion: Justice Powell, Monell, And The Meaning Of “Color Of Law”., David J. Achtenberg

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In Monroe v Pape, over an impassioned dissent by Justice Frankfurter, the Supreme Court held that Section 1983 authorized suits against state and local officials for constitutional violations even if those violations were not authorized by state or local law.  But it also held that cities and other local governmental entities could not be sued under the statute.  Monell v. Department of Social Services overruled Monroe and held that cities could be sued under the statute.  But it added an odd limitation that became known as the “Monell doctrine”: local governments could not be sued for their employees’ constitutional wrongs …

Gambling By Another Name; The Challenge Of Purely Speculative Derivatives, Timothy E. Lynch

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Derivatives contracts can be used to hedge pre-existing risks, but they can also be used to speculate. This Article focuses on derivatives contracts in which both counterparties are speculators. These “purely speculative derivatives (PSD) contracts” have become increasingly common over the last several years and have notably resulted in the transfer of many tens of billions of dollars from institutions that had invested in the US subprime housing market to a handful of speculators who foresaw the market’s collapse, as well as many billions of dollars in fees to PSD brokers.

PSD contracts are problematic. PSD contracts are less-than-zero-sum transactions …

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

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Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …

Family Law Education Reform: Progress And Innovation, Barbara Glesner Fines

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No abstract provided.

Challenges Of Representing Adolescent Parents In Child Welfare Proceedings, Barbara Glesner Fines

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For the past thirty years, arguments over the proper representation for children have been a focus of continuous academic debate. While the academic debate rages, in the majority of states, attorneys serve in a netherworld of unclear and conflicting standards.

One type of representation in particular focuses the terms of the debate: the representation of an adolescent parent in child welfare proceedings. Who are these child-clients? What are their rights to representation? What are the challenges for those representatives?

This article will advocate for strongly child-directed and child- centered representation of these teen parents.

Healing Medicare Hospital Recidivism: Causes And Cures, Ann Marie Marciarille

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The role of Medicare in our national market for acute care hospital services is that of a power buyer. Medicare beneficiaries in 2008 included some 45.2 million people. Total benefits paid in 2008 were $462 billion, including 29% of all hospital spending.2 Medicare’s dominance in the buyer’s market for acute care hospital beds renders the program particularly well-suited to scrutinize the role of acute care hospital services in producing effective and efficient outcomes for Medicare beneficiaries. "[I]f there are to be far-reaching changes in the way medicine is practiced in this country, Medicare will have to drive them." It is …

Those Who Ignore The Successes Of The Past Suffer Recurrent, Intensifying Crises, William K. Black

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No abstract provided.

Greene V. Fisher: Will The Aedpa Trump Uniformity And Equity In Constitutional Decision Making, Sean O'Brien

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No abstract provided.

What Did Jesus Do: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation, Daniel B. Weddle, Kathryn E. New

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Conservative Christian organizations assert that anti-bullying programs are a stealth effort by gay activists to introduce into American schools an aggressive lesbian, gay, bisexual, transgender (LGBT) agenda. They contend that legislation and bullying prevention programs that mention gays are an attempt to indoctrinate children to embrace homosexual lifestyles; tolerate homosexual behavior; and celebrate homosexuality, bisexuality, and transgender identity. These voices are having an impact on state legislatures and the damage is immense. Educational research has made clear the devastating effects of bullying upon children, and LGBT students are among the most often targeted and least protected students. Given that schools …

Cutting Edge Issues In Family And Matrimonial Law: An Annotated Bibliography, Nancy Levit

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This bibliography covers law review articles published, for the most part, after 2007. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated. Property-related issues will appear in the fall 2011 bibliography.

An Expectation Of Empathy, Steve Leben

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No abstract provided.

Will Gene Patents Impede While Genome Sequencing?: Deconstructing The Myth That 20% Of The Human Genome Is Patented, Christopher M. Holman

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A 2005 Science article by Jensen and Murray is widely cited for the proposition that 20% of human genes are patented, and has led to a pervasive assumption that thousands of human genes cannot be used, studied or even 'looked at' by researchers and healthcare providers without infringing a gene patent. Many have voiced concern that this perceived thicket of gene patents will impede the implementation of next-generation genetic technologies, particularly personal whole genome sequencing (WGS). In fact, Jensen and Murray only showed that, with respect to 20% of human genes known at the time they conducted their study, either …

Reshaping The Narrative Debate, Nancy Levit

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In Reshaping the Work-Family Debate: Why Men and Class Matter, Joan Williams sets out to alter the terms of the public discussion about working, caregiving, and work-family conflicts. In doing so, Williams also reframes part of the conversation about the use of narratives in legal analysis and policy-making.

This essay describes the debate about narrative or storytelling in the legal academy. Two decades ago, a pitched jurisprudential battle surfaced in the pages of law reviews about the value of storytelling as legal scholarship. Since that time, narrative has sifted into academic texts: people are telling stories all over the place. …

Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman

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In recent years, the major innovator pharmaceutical companies have experienced two pronounced and significant trends: a decreasing output of innovative new drugs and cutbacks in research and development (R&D) investment. The two phenomena probably are not unrelated and raise significant concerns for a society intent upon providing affordable health care for an aging population. While the root causes of these trends are complex and diverse, we should not overlook the critical role patents play in creating the necessary incentives for the substantial investment required to develop pharmaceutically-interesting chemical compounds into actual drugs and to take them through the clinical trials …

Prescription For Fairness: New Approach To Tort Liability Of Brand-Name And Generic Drug Manufacturers, Allen K. Rostron

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Over the past two decades, courts have consistently ruled that the manufacturer of a brand-name prescription drug cannot be liable for injuries suffered by those taking generic imitations of its product. This meant that a patient injured by a generic drug could have no remedy at all because in many instances the generic drug manufacturer would escape liability on the ground that it did not produce any information on which the patient’s doctor relied. It was a perplexing dilemma. The generic drug manufacturer made the product that the plaintiff received, the brand-name manufacturer produced all of the information the patient’s …

A Better Beginning: Family Law In The First Year Of Law School, Wanda M. Temm

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The American Bar Association’s Section of Legal Education and Admission to the Bar’s Standards Review Committee has focused law schools’ efforts to modify their curriculum with an appeal to focus on outcomes and assessments. A cornerstone of the outcomes and assessments discussion is skills training. The committee’s call for more skills training has prompted family law faculty to consider innovative methods to bring that training into substantive courses or to bring the substantive curriculum into a skills course. This essay discusses how law faculty are incorporating family law doctrines into first-year legal research and writing courses.

The Past And Future Role Of The Second Amendment And Gun Control In Fights Over Confirmation Of Supreme Court Nominees, Allen K. Rostron

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America’s elected representatives do many things well, but making firearms policies and assessing Supreme Court nominees are two with which they have struggled.

Gun control is one of the most volatile public policy issues. Many contend that a heavy price is paid every day because of inadequate controls on firearms. Others believe that legal restrictions on guns are counterproductive and that the freedom to have guns is in peril. This gun control versus gun rights debate has become deeply enmeshed in the political culture wars.

Similarly, few have good things to say about how the U.S. Senate reviews nominations of …

Criminal Acts & Ethical Dilemmas: Some Client Nightmares Sneak Up On You, Barbara Glesner Fines

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No abstract provided.

Lawyers Suing Law Firms: The Limits On Attorney Employment Discrimination Claims And The Prospects For Creating Happy Lawyers, Nancy Levit

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It is more than a mild irony that anti-discrimination law fails lawyers in particular. This article addresses doctrinal and pragmatic limits on employment discrimination lawsuits by lawyers against their law firms. It considers the failures of the Title VII template to remedy the sorts of discrimination and dissatisfactions lawyers face in the practice of law, and concludes that many of the things that make lawyers unhappy are simply not reachable through employment discrimination lawsuits. The latter portion of the article turns to the recently emerging science of happiness literature. It suggests that the interests of lawyers and their firms may …

Charitable Gifts By S Corporations And Their Shareholders: Two Worlds Of Law Collide, Christopher R. Hoyt

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This comprehensive article analyzes the rules that apply to, and the tax planning strategies for, a charitable gift of S corporation stock. It describes the interaction of the laws governing S corporations and tax-exempt organizations and describes the best ways to solve the challenges posed by each set of laws. The article also addresses additional challenges that can occur when specific types of tax-exempt organizations own S corporation stock, notably private foundations, donor advised funds, supporting organizations and ESOPs.

From the perspective of both the donor and the charity, three “bad things" happen when S corporation stock is contributed to …

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

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In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

Interdisciplinary Transactional Courses, Eric J. Gouvin, Robert R. Statchen, Anthony J. Luppino, William A. Kell

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This Article represents a panel presentation on interdisciplinary work in law school transactional courses. The Authors’ focus is on the Small Business Clinic at Western New England University School of Law. Topics covered are: interdisciplinary work and the classroom, professional liability and competency issues in rendering services through a clinic, culture class issues, ethical dilemmas, delivering professional products to the client, and co-curricular opportunities.

Copyright For Engineered Dna: An Idea Whose Time Has Come, Christopher M. Holman

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The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing our planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways ill-suited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed side-by-side, the two forms of intellectual property complementing one another. Numerous academic commentators …

Neo-Classical Economic Theories, Methodology, And Praxis Optimize Criminogenic Environments And Produce Recurrent, Intensifying Crises, William K. Black

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Control frauds” are seemingly legitimate entities controlled by persons that use them as a fraud “weapon.” A single control fraud can cause greater losses than all other forms of property crime combined. This article focuses on the role of neo-classical economic theory, methodology, and praxis is optimizing criminogenic environments that hyper-inflate financial bubbles and produce recurrent, intensifying financial crises. Financial control frauds’ “weapon of choice” is accounting. Neoclassical theory, which dominates law & economics, is criminogenic because it assumes that control fraud cannot exist while recommending legal policies that optimize an industry for control fraud. Its hostility to regulation, endorsement …

Jurisdiction By Cross-Reference, Lumen N. Mulligan

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State and federal law often cross-reference each other to provide a rule of decision. The difficulties attendant to these cross-referenced schemes are brought to the fore most clearly when a federal court must determine whether such bodies of law create federal question jurisdiction. Indeed, the federal courts have issued scores of seemingly inconsistent opinions on these cross-referential cases. In this article, I offer an ordering principle for these apparently varied, cross-referential, jurisdictional cases. I argue that the federal courts only take federal question jurisdiction over cross-referenced claims when they, from a departmental perspective, maintain declaratory authority over the cross-referenced law. …