Law Commons^™

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part I - Originalism And Deontology, Peter Brandon Bayer

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This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

The Dark Side Of Self-Regulation, Benjamin P. Edwards

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The financial services industry indirectly regulates itself through little discussed, scandal-prone, and structurally-entrenched self-regulatory organizations. FINRA, the most prominent of these self-regulatory organizations, makes regulations and sets enforcement policy that directly affect public welfare. As with other self-regulatory organizations, FINRA's structure poses a continual risk that industry members will subvert its processes to act like a cartel, promoting industry interests at the expense of the public and contributing to the excessive rents collected by financial intermediaries. Although this dark side to self-regulation poses a constant danger, structural reforms may increase the likelihood that FINRA and other self-regulatory organizations will take …

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

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The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers' dominant focus on reducing providers' liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution ("ADR"). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients' access …

Using Feminist Theory To Advance Equal Justice Under Law, Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi

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This essay provides an overview of the purposes, themes and scholarly methodologies evidenced at the October 2016 conference, The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at the University of Akron School of Law. This essay provides some of the background to the development of the path-breaking book, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016). It also focuses attention on the importance of diversity on the bench, with a particular need for judges who understand or experience the intersecting …

The Use And Abuse Of Mutual-Support Programs In Drug Courts, Sara Gordon

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There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court. Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment. This disconnect between our understanding of addiction and available addiction treatment has wide-reaching impact for individuals who attempt to receive medical care for addiction in …

Wrestling Tyrants: Do We Need An International Criminal Justice System?, Christopher L. Blakesley

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Prof. Christopher L. Blakesley delivered this keynote address at the Crimes Without Borders: In Search of an International Justice System Symposium, held at the McGeorge School of Law in the spring of 2016.

U.S. State Copyright Laws: Challenge And Potential, Marketa Trimble

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With copyright law in the United States lying primarily in the realm of federal law, the laws of the U.S. states concerning copyright do not typically attract significant attention from scholars, practitioners, and policy makers. Some recent events have drawn attention to state copyright laws – for example, litigation against a satellite radio provider for infringement of state common-law public performance rights in pre-1972 sound recordings. However, in general, state copyright laws remain largely in the shadow of federal copyright law, and state law is typically not viewed as a particularly useful vehicle for pursuing the policies that copyright law …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Asymmetry And Adequacy In Discovery Incentives: The Discouraging Implications In Haeger V. Goodyear, Jeffrey W. Stempel

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In this article, Professor Jeffrey Stempel explores the implications the decision in Haeger v. Goodyear Tire & Rubber Co. has for discovery and civil procedure. Professor Stempel argues the troublesome narrative that discovery problems and "abuse" are largely problems of claimants seeking excessive discovery that is unduly burdensome and costly relative to the case at hand is a significant part of the problem. Since the mid-1970s, the prevailing narrative has blamed discovery seekers more than discovery resisters.In that narrative, discovery problems are largely the problems of plaintiffs that are too unrealistic, sloppy, lazy, or greedy in frequently seeking excessive discovery. …

Introduction To The 2017 Annual Survey Of Consumer Financial Services Law, John L. Ropiequet, Andrew M. Smith, Keith A. Rowley

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No abstract provided.

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part Ii - Deontological Constitutionalism And The Ascendency Of Kantian Due Process, Peter Brandon Bayer

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This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

Rhetoric & Reality In The Aba Standards, Linda L. Berger

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The rhetoric of Chapters 3 and 4 of the ABA Standards creates, maintains, and perpetuates hierarchies in law school faculties. Those hierarchies subordinate some categories of faculty members and the courses they teach. Without change in the Standards or their implementation, these hierarchies will remain, and the values and norms of traditionally privileged faculty and subject matters will become even more firmly embedded as representing the best of the legal academy. By adopting the 405(c) “best practices” policy statement, individual law schools and law faculties take upon themselves the power to demonstrate that the ABA Standards are the floor, not …

Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble

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At the beginning of the 20th century, commentators referred to patent working requirements as the most contentious contemporary concept in patent law, and working requirements were at the center of discussions about revisions to the Paris Convention. By the end of the 20th century it seemed that working requirements attracted less attention; the TRIPS Agreement did not expressly mention working requirements at all. However, some TRIPS provisions do arguably relate to such requirements; in fact, some commentators believe that the TRIPS Agreement prevents countries from maintaining such requirements, at least in some forms. Although the lack of interest in working …

Racial Anxieties In Adoption: Reflections On Adoptive Couple, White Parenthood, And Constitutional Challenges To The Icwa, Addie C. Rolnick

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The Indian Child Welfare Act (ICWA) is under fire from people who argue that it interferes with adoptions and violates the constitution by doing so. The current crop of lawsuits is an outgrowth of a 2012 case in which the Supreme Court heard its second-ever challenge to the law. While the Court sidestepped the most far-reaching anti-ICWA arguments, the majority opinion evidenced a deep skepticism about the law. This skepticism led the Court to narrow the law’s application so that it didn’t apply to the family involved, and it seemed to invite further challenges to the law.

Five Myths About Public Sector Labor Law In Nevada, Ruben J. Garcia

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The forces of collective bargaining reform in the 78th Nevada Legislative Session primarily set about to: (1) make it easier for employees not to pay anything to the unions that are required to represent them in negotiations and grievance handling and (2) eliminate the kinds of agreements and practices that purportedly have caused financial turmoil to the state as it emerges from the depths of the Great Recession. Unfortunately, many of these “reforms” were based on misconceptions about the role and effects of public sector collective bargaining in Nevada and in American society generally. In this article, I describe five …

Teaching The Hipaa Privacy Rule, Stacey A. Tovino

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Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the …

When Less Is More: An Ideological Rhetorical Analysis Of Selected Aba Standards On Curricula And Faculty, Linda L. Berger

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This chapter undertakes an ideological rhetorical analysis of several key provisions of Chapters 3 and 4 of the American Bar Association’s Standards for Approval of Law Schools, specifically, the interrelated provisions that regulate the curriculum and specify the required conditions of employment for the faculty of a law school. The analysis of selected ABA Standards regulating curricula and faculty supports rhetorical analyst Sonja Foss’s conclusion that the “dominant ideology controls what participants see as natural or obvious by establishing the norm. . . . [and] provides a sense that things are the way they have to be as it asserts …

The Hipaa Privacy Rule And The Eu Gdpr: Illustrative Comparisons, Stacey A. Tovino

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In this Article, Professor Tovino compares and contrasts three illustrative concepts and rights in the Privacy Rule and/or the GDPR, including the concepts of authorization and consent, the rights of amendment and rectification, and the right to erasure. Identified similarities reflect the core values of HHS and the EU with respect to maintaining the confidentiality and privacy of personal data and protected health information, respectively. Identified differences reflect the Privacy Rule's original, narrow focus on health industry participants and individually identifiable health information compared to the GDPR's broad focus on data controllers and personal data. Other differences reflect, perhaps, the …

Disparities In Private Health Insurance Coverage Of Skilled Care, Stacey A. Tovino

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This article compares and contrasts public and private health insurance coverage of skilled medical rehabilitation, including cognitive rehabilitation, physical therapy, occupational therapy, speech-language pathology, and skilled nursing services (collectively, skilled care). As background, prior scholars writing in this area have focused on Medicare coverage of skilled care and have challenged coverage determinations limiting Medicare coverage to beneficiaries who are able to demonstrate improvement in their conditions within a specific period of time (the Improvement Standard). By and large, these scholars have applauded the settlement agreement approved on 24 January 2013, by the U.S. District Court for the District of Vermont …

Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel

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Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would …

Native Youth & Juvenile Injustice In South Dakota, Addie C. Rolnick

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In this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can …

(Anti)Poverty Measures Exposed, Francine J. Lipman

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Few economic indicators have more salience and pervasive financial impact on everyday lives in the United States than poverty measures. Nevertheless, policymakers, researchers, advocates, and legislators generally do not understand the details of poverty measure mechanics. These detailed mechanics shape and reshape poverty measures and the too often uninformed responses and remedies. This Article will build a bridge from personal portraits of families living in poverty to the resource allocations that failed them by exposing the specific detailed mechanics underlying the Census Bureau’s official (OPM) and supplemental poverty measures (SPM). Too often, when we confront the problem of poverty, the …

On Health, Law, And Religion, Stacey A. Tovino

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The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

The Professional Prospectus: A Call For Effective Professional Disclosure, Benjamin P. Edwards

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Without easy access to relevant information, many consumers unwittingly trust serious decisions to professionals with histories of malpractice and negligence-leading to both individual and societal harms. This Article proposes to improve professional services markets with a tool that has already proven effective in the securities markets: a prospectus. A "Professional Prospectus" would reduce information asymmetries and improve the market for professional services through disclosure and consumer choice.

A Professional Prospectus would alter the market for professional services by making professional reputation a more potent force. Economic theory often relies on "reputation effects" to ensure the efficient functioning of the market …

Distributed Governance, Carla L. Reyes, Nizan Geslevich Packin, Benjamin P. Edwards

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Distributed ledger technology disrupts traditional business organizations by introducing new business entities without the directors and officers of traditional corporate entities. Although these emerging entities offer intriguing possibilities, distributed entities may suffer significant collective action problems and expose investors to catastrophic regulatory and governance risks. Our Article examines key considerations for stakeholders and argues that distributed entities must be carefully structured to function effectively.

This Article breaks new ground by critically examining distributed entities. We argue that a distributed model is most appropriate when distributed ledger technology solves a unique corporate governance problem. We caution against ignoring the lessons painstakingly …

Conflicts & Capital Allocation, Benjamin P. Edwards

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The regulatory structure for financial advice now tolerates incentives motivating financial advisors to manipulate and deceive retail investors. While scholars thus far have argued for ways to improve investor protections, the literature has largely ignored how these flawed incentives affect the economy.

This Article contends that these flawed incentives cause financial advisors to negatively affect capital allocation throughout the overall economy.

This Article draws on literature about manipulation and deception in principal-agent relationships to show how conflicts of interest cause the market for financial advisor services to generate excessive intermediation, driving harms to the real economy. This Article uses case …

Redefining Roles And Duties Of The Transactional Lawyer: A Narrative Approach, Lori D. Johnson

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Today’s transactional lawyers perform myriad tasks for their clients, including structuring, drafting, conceptualizing, negotiating, and executing the complex, risky, and often cutting-edge transactions their clients bring to the table. On the other side of that table, often sits another team of sophisticated transactional lawyers. These opposing counsel are armed for battle over every nuance, every word, every representation, every deliverable, and every obligation their client is poised to undertake or agree to. Therefore, modern transactional lawyers must behave as advocates and explore new modes of persuasion. As a response, scholars have begun to propose that transactional lawyers employ methods of …

In Praise Of Margaret Howard, Nancy B. Rapoport

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Professor Nancy Rapoport joins a group of distinguished colleagues in paying tribute to Professor Margaret Howard.

Public Policy And Workers’ Rights: Wrongful Discharge Discipline Actions And Reasonable Good Faith Beliefs, Ann C. Mcginley, Nicole Buonocore Porter

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In this paper, Professor Ann McGinley responds to Chapter 5 of the ALI's Restatement of the Law: Employment Law ("Restatement of Employment Law"), concerning "The Tort of Wrongful Discharge in Violation of Public Policy."' It proceeds in five parts. Following an introduction in Part I, Part II summarizes generally the provisions of Chapter 5, the Working Group's objections to the earlier version and recommendations for changes, and explains (when appropriate) where the final version deviated from the prior version. Part III argues that this chapter should have kept the prior version's protection against wrongful discipline instead of protecting only against …

An Analytic "Gap": The Perils Of Relentless Enforcement Of Payment-By-Underlying-Insurer-Only Language In Excess Insurance Policies, Jeffrey W. Stempel

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Excess liability insurance, as the phrase implies, sits atop primary insurance or a lower layer of excess insurance and is required to cover only claims that are above the policy's "underlying limit" and reach the "attachment point" of the excess policy in question. Historically, the law was largely indifferent to whether the underlying limit was exhausted by full payment from the underlying insurer or by other means such as payment by the policyholder due to an underlying insurer's insolvency or because the policyholder and underlying insurer had compromised a coverage dispute for less than 100 percent coverage by the underlying …