Law Commons^™

Specialty Drugs And The Health Care Cost Crisis, Isaac ("Zack") D. Buck

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Specialty drugs, often dispensed by specialty pharmacies, are among the most expensive drugs on the market. They are significant contributors to the American health care cost problem, but in many ways they escape public and regulatory scrutiny. Surprisingly, medications are designated as specialty drugs by pharmacy benefit managers (PBMs), entities that are part of the insurance industry, rather than by the Food and Drug Administration or medical authorities.

Specialty drugs have thus far received little attention in the legal literature. Yet, they raise important legal and regulatory questions. For example, there are no federal government rules (and only a handful …

While They Waited: Pre-Obergefell Lives And The Law Of Nonmarriage, Michael J. Higdon

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In the wake of Obergefell, the United States now has a large class of married, same-sex couples whose relationships began at a time when marriage was unavailable to them. The law must therefore wrestle with the question whether any portion of a pre-Obergefell relationship should count toward the length of the ensuing marriage — an important question given the number of marital benefits tied directly to this calculation. As courts and legislators alike wrestle with this difficult question, they will need to examine how these couples ordered their relationships during a time when “nonmarriage” was the only option. This Essay …

Cotten V. Wilson: Toward A New Approach In Negligence Cases Involving Suicide, Alex B. Long

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No abstract provided.

A Proposal For The Adoption Of Research-Based Interventions By Instructors For Law School Research Classes In American Law Schools, Nathan A. Preuss

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This paper identifies educational motivation issues in the law student population; particularly in required legal research courses. The author summarizes two relevant psychological theories widely applied in educational contexts: expectancy-value theory and attributional theory. Intervention methods to reduce or eliminate these motivational problems are suggested.

Blockchains, Corporate Governance, And The Lawyer's Role, Joan Macleod Heminway

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Significant aspects of firm governance can (and, in coming years, likely will) be conducted on blockchains. This transition has already begun in some respects. The actions of early adopters illustrate that moving governance to blockchains will require legal adaptations. These adaptations are likely to be legislative, regulatory, and judicial. Firm management, policy-makers, and judges will turn to legal counsel for education and guidance.

This article describes blockchains and their potentially expansive use in several aspects of the governance of publicly traded corporations and outlines ways in which blockchain technology affects what business lawyers should know and do — now and …

Designing Deregulation: The Potus's Place In The Process, Joan Macleod Heminway

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Candidates for U.S. president — like those for any elected office or leadership position — make promises about what they will do if they are elected to office. If we take time to think through what must be done to fulfill those promises, however, we may find that the action or forbearance of Congress, the federal courts, or others is required to achieve the pledged objectives. Nevertheless, we expect the president to make good on those campaign commitments — and more. Our current president, for example, ran a campaign in which deregulation was a centerpiece.

This essay interrogates the role …

Access To Justice And Routine Legal Services: New Technologies Meet Bar Regulators, Benjamin H. Barton

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This Article explores controversies over bar regulation of new online technologies that help address the routine legal needs of low- and middle-income consumers. It is critical that lawyer regulators resist the temptation to restrict organizations that respond to the nation 's huge unmet needs of individuals of limited means. After briefly reviewing the rise of technology in this space, this Article discusses efforts to rein in three of the largest U. S. providers of consumer oriented legal services, LegalZoom, Rocket Lawyer, and Avvo Legal Services. Analysis then focuses on the lawsuits and regulatory restrictions faced by Avvo, and the ultimate …

Standing On The Shoulders Of Giants, Paula Schaefer

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No abstract provided.

From Colonies To Corporations: A Comment On Adam Winkler's We The Corporations, George Kuney

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No abstract provided.

Lawyering For Social Enterprise, Joan Macleod Heminway

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Social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Moreover, the law governing social enterprises also is unclear and unpredictable in respects. This essay identifies two principal areas of uncertainty and demonstrates their capacity to generate lawyering challenges and related transaction costs around both entity formation and …

When Congress Acts: Judicial Procedural Innovation And The Pslra, Briana L. Rosenbaum

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No abstract provided.

Represent, Teri Dobbins Baxter

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No abstract provided.

Mr. Toad’S Wild Ride: Business Deregulation In The Trump Era, Joan Macleod Heminway

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This Essay identifies and takes stock of the Trump Administration’s deregulatory efforts as they impact business interests, with the thought that even incomplete or biased information may be useful to transactional business lawyering.

What of significance has been done to date? With what articulated policy goals, if any? How may — or how should — the success of the administration’s business deregulatory plans and programs be judged? What observations can be made about those successes? For example, who may win and lose in the revised regulatory framework that may emerge? The Essay approaches these questions from a transactional business law …

The Legislature As The Place For Crafting Policies For Corporations: A Comment On Professor Edwards' Proposal, Dwight Aarons

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No abstract provided.

Developing A Culturally Competent Legal Research Curriculum, Shamika Dalton

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No abstract provided.

Does The Reasonable Man Have Obsessive Compulsive Disorder?, Lucille Jewel

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The reasonable man is an anthropomorphic metaphor for legal reasoning. In this role, he sometimes shows symptoms of mental illness. He exhibits a compulsion to organize, rank, and prevent disorder, a process that can create unjust outcomes. When he is symptomatic, the reasonable man becomes a monster borne out of a fear of disorder. As the putative judge whom all lawyers write and speak in front of, the reasonable man is the reader attorneys fine-tune their arguments and language for. After developing a case history for the reasonable man, this Article engages with several questions. First, when advocates emulate the …

The International Religious Freedom Act: Non-State Actors And Freedom From Sovereign Government Control, Robert C. Blitt

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The International Religious Freedom Act (IRFA) recently underwent its most significant amendment process since being introduced in 1997. Among the major changes, sponsors of the Frank R. Wolf International Religious Freedom Act (Wolf Act) proposed adding a new framework to IRFA intended to address the phenomenon of non-state actors (NSAs) violating the right to freedom of religion or belief. The impetus for this new mandate, according to the bill’s sponsors, flowed from the realization that NSAs such as the Islamic State in Iraq and Syria (ISIS or ISIL) were wielding religious intolerance to commit “some of the most egregious religious …

The Wolf Act Amendments To The U.S. International Religious Freedom Act: Breakthrough Or Breakdown?, Robert C. Blitt

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This Article takes a critical look at the major changes brought about by recent amendments to the International Religious Freedom Act of 1998 (IRFA). The first section briefly traces IRFA’s key features and operation since its enactment, including an overview of the statute’s institutions and reporting and sanctioning mechanisms. This section also highlights the ongoing debate regarding IRFA’s legitimacy and offers a summary of the major criticisms leveled against the statute, as well as the responses raised in its defense.

With this background in place, the Article turns to an analysis of the legislative history surrounding the Frank R. Wolf …

Community Economic Development Is Access To Justice, Brian Krumm

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What gaps exist in the justice system that result in a need for services provided by community economic development attorneys? What is the evidence that those gaps actually exist? How do we know that community economic development practitioners fill those gaps, and in what way? These are merely a few of the questions addressed in this collection.

At the Association of American Law Schools (AALS) annual meeting in San Diego in January 2018, legal scholars gathered to discuss this evolution as part of the discussion group, “Community Economic Development Is Access to Justice.” The goal of the discussion group was …

Pricing Algorithms & Collusion, Maurice Stucke

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No abstract provided.

Erosions Of The Work/Non-Work Divide, Alex B. Long

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No abstract provided.

Death In The Shadows, Lucille Jewel

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This paper is about the law and visual culture. Its centerpiece is Parson Weems’ Fable (1939), a painting by the American artist Grant Wood (1891-1942) that depicts the apocryphal story of George Washington and the cherry tree. At first glance, Wood’s image appears to celebrate an enduring myth of American virtue, namely Washington’s precocious inability to tell a lie. Studying the picture more closely, however, one finds a pair of black figures, presumably two of the Washingtons’ slaves. Stationed beneath dark storm clouds and harvesting cherries from a second tree, these slaves invoke yet another national myth, that of the …

Where Do We Go From Here?, George Kuney, Joan Macleod Heminway, Howard E. Katz

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No abstract provided.

Abolishing The Suicide Rule, Alex B. Long

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Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit …

The Legislative Role In Procedural Rulemaking Through Incremental Reform, Briana L. Rosenbaum

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Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform. While much attention has been paid to the 115th Congress’s policy-based proposals, scant attention has been paid to the fact that Congress had, at the same time, proposed sweeping changes to court access. From trans-substantive measures affecting procedure in every civil case, to targeted measures changing the procedures in police misconduct cases and medical malpractice lawsuits, the legislature …

Me, Too And #Metoo: Women In Congress And The Boardroom, Joan Macleod Heminway

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The “Year of the Woman” (1992) and the year of #MeToo (2018) were landmark years for women in federal congressional elections. Both years also represent significant milestones for women’s roles as U.S. public company directors. In each of these two years, social context was interconnected with these political and corporate gender changes. The relevant social context in 2018 is most clearly defined by public revelations of sexual misconduct involving a significant number of men in positions of political and business power. The relevant social context in 1992 similarly involved specific, highly public disclosures and allegations of sexual misconduct.

These parallels …

Federalism, Entitlement, And Punishment Across The U.S. Social Welfare State, Wendy A. Bach

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In a 2018 letter the Trump Administration announced that it was open to proposals to include work requirements and other changes in state Medicaid programs. These proposals came in the form of administrative waiver requests that would allow particular states the flexibility to change the rules of Medicaid eligibility in their state. They were seeking permission to condition the receipt of Medicaid on compliance with work requirements and to “align” the Medicaid program with programs like Temporary Assistance to Needy Families. The Obama administration had consistently rejected such requests on the grounds that work requirements did not further the aims …

Law Student Motivation, Satisfaction, And Well-Being: The Value Of A Leadership And Professional Development Curriculum, Douglas A. Blaze

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No abstract provided.

Biological Citizenship And The Children Of Same-Sex Marriage, Michael J. Higdon

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In 2015, the Supreme Court ruled that states could not, consistent with the Due Process Clause, deny same-sex couples the right to marry. To allow otherwise, said the Court, would “harm and humiliate the children of same sex marriage.” Thus, it was hoped that marriage equality would provide greater security for the children of same-sex couples. And the need for such protections are increasingly important given that, with advances in assisted reproduction techniques, it is easier than ever for same-sex couples to become parents. Indeed, when it comes to procreation, same-sex marriages and opposite-sex marriages are becoming much more alike. …

Gina, Big Data, And The Future Of Employee Privacy, Brad Areheart

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Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. While we concede that GINA may have failed to alleviate anxieties about medical genetic testing, we assert that it has unappreciated value as an employee-privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against …