Law Commons^™

Statutory Genres: Substance, Procedure, Jurisdiction, Karen Petroski

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To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule’s effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the …

Brief Of Amici Curiae Health Law & Policy Scholars And Prescription Policy Choices In Support Of Respondents On The Constitutional Validity Of The Medicaid Expansion, Kevin Outterson, Laura Hermer, Nicole Huberfeld, Elizabeth Weeks Leonard, Sara Rosenbaum, Sidney D. Watson

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The Medicaid expansion in Section 2001(a)(1)(C) of the Patient Protection and Affordable Care Act is one part of Congress’s comprehensive effort to expand access to health care coverage. This expansion is not revolutionary, but builds on many prior statutory amendments to Medicaid. Nor does it alter the voluntary nature of the Medicaid program – as before, States remain free to decline federal funding. The Petitioners and their amici have mischaracterized the expansion to obscure these facts, hoping this Court will unravel this hard-fought legislative enactment.

The question presented is whether Congress may offer States generous additional funding for Medicaid, with …

Looking At Regional Trade Agreements Through The Lens Of Gender, Constance Z. Wagner

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This article focuses on an unresolved issue within international trade law and policy, namely whether there is a need to consider gender-differentiated impacts of trade agreements and if so, how such impacts should be addressed. The author argues in favor of a gender aware approach to trade, discussing this topic within the context of regional trade agreements (“RTAs”), which are being used increasingly as a route to economic integration among nations. While there is evidence of gender-differentiated impacts of trade liberalization, there has been little progress made in advancing an agenda to address gender issues at the level of multilateral …

New Nip In The Bud: Does The Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, Michael C. Duff

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In this essay I revisit the classic debate concerning when worker activity is sufficiently “concerted” to be covered by the National Labor Relations Act, a statute covering certain private sector protected “concerted” activity by workers. When workers are obviously engaged in concerted “labor” activity — classically activity like striking, picketing, or even just complaining about working conditions — they are generally protected against employer reprisal for doing so. Over the last few decades there has been disagreement about the definition and limits of “concert.” My renewed interest in this dormant but not dead subject was piqued by the “Obama Board’s” …

The Regulation Of Private Equity, Hedge Funds And State Funds, Henry Ordower

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This United States report responds to a questionnaire that the general reporter for the project prepared. The project describes United States law features of hedge funds, private equity funds and sovereign wealth funds and identifies critical current issues in their regulation and governance. The report also includes discussion of recent United States legislation on financial services that affects those pooled investment vehicles.

Incorporating Litigation Perspectives To Enhance The Business Associations Course, Ann M. Scarlett

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This Article discusses having students in a Business Associations course think about the potential risks of a business decision, including consideration of the multiple perspectives that might produce litigation, as a method for enhancing students understanding of the new legal norms for businesses and the process for advising businesses.

Virtual Whistleblowing, Miriam A. Cherry

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With the advent of YouTube, blogs, social networking, and whistleblower websites such as WikiLeaks, the paradigm of whistleblowing is changing. The new paradigm for “virtual whistleblowing” is increasingly online, networked, and anonymous. While whistleblowing can take place in many contexts, this symposium article concentrates on the impact of technological changes on employment law whistleblowing. My contention for some time has been that existing regulation has been inadequate to cover existing forms of whistleblowing. Therefore, it is not surprising that existing whistleblowing laws have also failed to keep pace with the changes brought by modern technology. If older laws cannot be …

Schedularity In U.S. Taxation, Its Effect On Tax Distribution, Comparison With Sweden, Henry Ordower

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The United States derives from a global income tax model under which it taxes it citizens and permanent residents on all their worldwide income without regard to the source of that income. Under a pure global model, the United States would combine income and deductions in a single tax computation. Other countries including Germany and Sweden originate in schedular income tax models under which the tax system classifies income by type, matches it with deductions from the same class, and computes a separate tax on each class. Neither the United States’ global model nor Germany’s or Sweden’s schedular models are …

Undo Undue Hardship: An Objective Approach To Discharging Federal Students Loans In Bankruptcy, Aaron N. Taylor

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A debtor seeking to discharge student loans in bankruptcy must prove that paying the debt would cause an undue hardship upon him and his dependents. Undue hardship, however, is an undefined concept, flummoxing debtors, creditors and judges alike. The result of this ambiguity is rampant inconsistency in the manners in which similarly-situated debtors (and creditors) are treated by the courts. This article argues that the undue hardship standard should be replaced by a framework that uses debt service thresholds to determine the propriety of federal student loan bankruptcy discharges. Eligibility for discharge would depend on outstanding loan amounts, debtor income …

Knowledge, Attitudes Toward Corporations, And Belief In A Just World As Correlates Of Tort Reform Attitudes, Molly J. Walker Wilson, Ruth H. Warner

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Recent legislation in tort law has resulted in such changes as states capping punitive and non-economic damages as well as abolishing the collateral source rule and joint and several liability. The purpose of the present research is to examine attitudes toward changes in tort law. We asked American adults about their attitudes toward the civil justice system and its players, experiences in the civil justice system, and belief in a just world. We found that a more negative attitude toward litigation and juries, higher belief in a just world, and a more positive attitude toward corporations and doctors predicted a …

Racial Disparities In Accessing Health Care And Health Status, Ruqaiijah Yearby

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Point (Overview): Interpersonal and institutional racial biases are the principal reasons for racial disparities in accessing health care and disparities in African Americans’ health status, which can only be addressed by acknowledging and putting an end to interpersonal and institutional racial bias in the health care system that adversely affects the health status African-Americans.

Counterpoint (Overview): The irrational structure of health care, which is based on ability to pay, rather than need is the main cause of racial disparities in health, which will not be equalized until the structure of the health care system is fixed or when African Americans’ …

Regulators As Market-Makers: Accountable Care Organizations And Competition Policy, Thomas L. Greaney

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Of the many elements animating structural change under health reform, Accountable Care Organizations (ACOs) have drawn the greatest attention. The ACO strategy entails regulatory interventions that at once aim to reshape the health care delivery system, improve outcomes, promote adoption of evidence based medicine and supportive technology, and create a platform for controlling costs under payment system reform. Ambitious aims to be sure. Implementation, however, has proved a wrenching process. This article looks at the intersection of markets and regulation under the Affordable Care Act. Specifically, it analyzes regulatory interventions under the MSSP designed to foster commercial market competition. Assessing …

Homeownership — Dream Or Disaster?, Peter W. Salsich

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This article discusses the impact of the foreclosure crisis on the housing prospects of American families. Foreclosure is governed by state law, which establishes a procedure to enable lenders to recover property from defaulting borrowers through a public sale process. States authorize two different methods, judicial foreclosure, in which the foreclosure process requires a judicial hearing, and power of sale foreclosure, in which a trustee can offer mortgaged property to the highest bidder at a public sale after giving twenty days public notice. Judicial foreclosure is administered by state courts in twenty-three states. The power of sale foreclosure process is …

Does America Need Public Housing?, Peter W. Salsich

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Does Twenty-First Century America Need Publicly-Owned Housing? This question was being asked in 2011, as an era of sharply-curtailed discretionary government spending dawned in the aftermath of the debt limitation crisis. From its inception in 1937 to the present, public housing remains the housing program with the deepest subsidy, designed for households who cannot compete effectively in the private housing market and, since the 1950s, the program that reaches the lowest income quadrant of society. Questions posed in 2011 center around the future of the 1.1 million public housing units in existence (down from 1.4 million two decades ago), all …

In Defense Of Punishment Theory, And Contra Stephen: A Reply To Degirolami, Chad W. Flanders

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Marc DeGirolami’s searching recent essay in this Journal is — appropriately enough — hard to categorize, or even to summarize. It aims to criticize the rise of “theory” in the academic study of criminal punishment, but it does not stop at merely being critical. Rather, it attempts to revive the thought of James Fitzjames Stephen,and also to urge a better way of looking at the study of punishment: one that is more historically oriented as well as more pluralist. Stephen’s thought, DeGirolami complains, has been misunderstood and flattened, andit is our loss. We have lost not only the views of …

Election Law Behind A Veil Of Ignorance, Chad W. Flanders

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Election law struggles with the question of neutrality, not only with its possibility — can election rules truly be neutral between parties?—but also with its definition. What does it mean for election laws to be ― neutral? This Article examines one form of election law neutrality, found in what it terms ― veil of ignorance rules Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections.

This Article considers the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly …

Disparate Impact And Equal Protection After Ricci V. Destefano, Marcia L. Mccormick

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As Professor Richard Primus noted in his article, Equal Protection and Disparate Impact: Round Three, the constitutional issues surrounding the disparate impact theory of discrimination have evolved significantly over time. First the question was whether the Constitution’s equal protection guarantee embodied disparateimpact. Most people assumed yes, but the Supreme Court said no in 1976 in Washington v. Davis. Second, the source of Congress’ power to prohibit disparate impact discrimination was called into question with the so-called federalism revolution. Only if it was within Congress’ power under Section 5 of the Fourteenth Amendment could disparate impact legislation be applied to the …

Decoupling Employment, Marcia L. Mccormick

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The protected class approach to employment discrimination has not solved the problem of discrimination or of a just distribution of resources. Not only do race and sex prejudice continue to exist, but material and subjective disadvantage continues to be strongly linked to race and sex. While our laws have made social changes, progress on those changes stalled in the 1980s. Some might even say that the protected class approach to discrimination has actually entrenched inequality more deeply into our social fabric.

This Article seeks a purpose-driven approach to finding solutions to the problems of discrimination, asking why it is that …

Cost As A Sentencing Factor: Missouri's Experiment, Chad W. Flanders

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In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.

This essay represents the first sustained look at …

Workplace Reform In A Jobless Recovery, Marcia L. Mccormick

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In 2012, the United States was recovering from a recession and policy makers were debating how to solve the country’s economy. This essay looks at the labor and employment reforms (or lack thereof) of President Obama’s first term, and the differing views of the role of government in creating jobs. The article challenges us to think beyond the two solutions commonly discussed: de-regulation and a “New Deal” program.

There are ways current lawmakers could come together to help protect jobs. Some of the solutions offered by the article include using automatic contribution plans, promoting part-time work, and giving employees more …

Breaking The Cycle Of “Unequal Treatment” With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah A. Yearby

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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 …

Advancing Health Law & Social Justice In The Clinic, The Classroom And The Community, John J. Ammann

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Law school clinics are paramount to developing law school graduates who embrace their “special responsibility for the quality of justice,” as well as their role in ensuring equal access to justice for marginalized, impoverished and underserved members of society. This responsibility permeates every aspect of lawyering, especially the practice of health law. This article explores, first, how clinics and social justice fit into the practice of health law and into the training of future health law attorneys and policymakers. Second, it defines social justice in the context of health and, finally, it provides examples that demonstrate how we can, and …

The Post-Revolutionary Period In Corporate Law: Returning To The Theory Of The Firm, Matthew T. Bodie

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Law and economics revolutionized the study of corporate law. However, while modern finance theory and attendant empirical research continue to explore the effects of law on shareholder value, the theory of the firm literature has been underutilized. This paper, presented as part of the Berle III: Theory of the Firm Symposium at Seattle University School of Law, argues that corporate law scholars should turn their attention back to this literature and develop a deeper understanding of the corporation as firm.

Gender, Family, And Work, Marcia L. Mccormick

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The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

American Legal History Survey: Syllabus, Anders Walker

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This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

Iqbal And Interpretation, Karen Petroski

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Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision’s constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers …

Pursuing High Performance In Rural Health Care, A. Clinton Mackinney, Keith J. Mueller, Andrew F. Coburn, Jennifer P. Lundblad, Timothy D. Mcbride, Sidney D. Watson

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In 2001, the Institute of Medicine (IOM) called for transformation of the United States health care system to make it safe, effective, patient-centered, timely, efficient, and equitable.1 The journey toward these six aims in public policy and the private sector is underway, but fundamental challenges detailed by the IOM remain. Patients are injured at alarming rates, wide variation in care exists across geographies, patients complain of insensitive and/or inaccessible health care providers, health care costs are nearly twice that in other developed countries, and nearly 50 million Americans lack health insurance. As a result, our health care is often fragmented, …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

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This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Criminal Courts And Procedure, Stephen C. Thaman

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This chapter provides both a historical and modern perspective on criminal procedure around the world.

The Mark Of A Resold Good, Yvette Joy Liebesman, Benjamin Wilson

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Over the past ten years, the Internet has revolutionized the resale market ― casual resellers have migrated from garage sales, swap meets, and classified ads, to eBay and Craigslist, turning hobbies into lucrative businesses. This has affected the sales of new goods and troubled manufacturers, who seek to curtail the growth of this secondary market.

Most of these on-line resales should be protected by the first-sale doctrine, a well-known defense to infringement claims that applies across patent, copyright, and trademark law. Simply stated, once a manufacturer sells a product, it may not interfere with secondary sales of that product. Yet …