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Articles 1 - 30 of 40
Full-Text Articles in Law
The Supreme Court Limits Lawsuits Against Managed Care Organizations, Timothy Stoltzfus Jost
The Supreme Court Limits Lawsuits Against Managed Care Organizations, Timothy Stoltzfus Jost
Scholarly Articles
In Aetna Health Inc. v. Davila, the United States Supreme Court revisited the question of whether the Employee Retirement Income Security Act (ERISA) precludes state lawsuits against ERISA plans. The Court held that ERISA preempts damage actions brought against managed care organizations under the Texas Health Care Liability Act because ERISA itself provides the exclusive remedy for challenging ERISA plans' coverage decisions. The Court suggested, however, that health plans might be liable for treatment decisions made by employed physicians. It also volleyed back to Congress the question of whether ERISA beneficiaries should have any remedy for damages caused by coverage …
Kimbell V. United States: The Rise And Apparent Fall Of The Section 2036 Argument Against Flps, Brant J. Hellwig
Kimbell V. United States: The Rise And Apparent Fall Of The Section 2036 Argument Against Flps, Brant J. Hellwig
Scholarly Articles
In this report, Professor Hellwig examines the application of section 2036 to family limited partnerships in the context of the Fifth Circuit's recent opinion in Kimbell v. United States. After describing how the government developed section 2036 into an effective tool in combating the use of family limited partnerships to generate transfer tax savings, the report details how the Fifth Circuit's interpretation of the adequate and full consideration exception to section 2036 in Kimbell severely curtails the government's position. The report concludes with criticisms of the Kimbell decision, namely that the court failed to properly follow its own precedent in …
Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla
Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence, Rodney A. Smolla
Scholarly Articles
Not available.
Risk Assessment: Promises And Pitfalls, Nora V. Demleitner
Risk Assessment: Promises And Pitfalls, Nora V. Demleitner
Scholarly Articles
Not available.
'Lesser Evils' In The War On Terrorism, Mark A. Drumbl
'Lesser Evils' In The War On Terrorism, Mark A. Drumbl
Scholarly Articles
No abstract provided.
Why Can't We Do What They Do? National Health Reform Abroad, Timothy Stoltzfus Jost
Why Can't We Do What They Do? National Health Reform Abroad, Timothy Stoltzfus Jost
Scholarly Articles
This article describes how other countries organize and finance their health care systems, and how the performance of those health care systems compares with that of the United States. It also examines why the United States, unlike all other developed countries, has failed to provide universal access to health care services.
Brown Ii'S "All Deliberate Speed" At Fifty: A Golden Anniversary Or A Mid- Life Crisis For The Constitutional Injunction As A School Desegregation Remedy?, Doug Rendleman
Scholarly Articles
In 1955 in Brown II the Supreme Court instructed school authorities and federal judges how to implement its decision in Brown I that racially segregated public schools violated the constitution. This article summarizes the half-century of federal injunctions that the courts granted to desegregate schools. It organizes the injunctions chronologically under three headings, "all deliberate speed," desegregate "now," and "unitary" districts. Rejecting both extravagant hoopla and charges of "failure," the article approves disciplined judicial discretion leading to large-scale structural injunctions when the times are ripe because unconstitutional conditions warrant massive judicial reconstruction. In particular, the article maintains that the courts' …
Health Law And Administrative Law: A Marriage Most Convenient, Timothy Stoltzfus Jost
Health Law And Administrative Law: A Marriage Most Convenient, Timothy Stoltzfus Jost
Scholarly Articles
This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the …
The Alien Tort Claims Act Under Attack: Introductory Remarks, Mark A. Drumbl
The Alien Tort Claims Act Under Attack: Introductory Remarks, Mark A. Drumbl
Scholarly Articles
None available.
Rights, Culture, And Crime: The Role Of Rule Of Law For The Women Of Afghanistan, Mark A. Drumbl
Rights, Culture, And Crime: The Role Of Rule Of Law For The Women Of Afghanistan, Mark A. Drumbl
Scholarly Articles
This Article explores the role of rule of law in redressing crimes and human rights abuses committed against the women of Afghanistan. Mainstream discourse approaches the situation binarily, obliging women to choose between international and often distant human rights, on the one hand, or proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan is reflected in codes such as the …
Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield
Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield
Scholarly Articles
Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations.
A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …
Free The Fortune 500! The Debate Over Corporate Speech And The First Amendment, Rodney A. Smolla
Free The Fortune 500! The Debate Over Corporate Speech And The First Amendment, Rodney A. Smolla
Scholarly Articles
Examines the lessons to be learned in the U.S. Supreme Court landmark free speech case in "Nike Inc. v. Kasky".
Nineteen Rules To Dean By, Rodney A. Smolla
Professional Sovereignty In A Changing Health Care System: Reflections On Paul Starr's The Social Transformation Of American Medicine, Timothy Stoltzfus Jost, Keith Wailoo, Mark Schlesinger
Professional Sovereignty In A Changing Health Care System: Reflections On Paul Starr's The Social Transformation Of American Medicine, Timothy Stoltzfus Jost, Keith Wailoo, Mark Schlesinger
Scholarly Articles
Not available.
The Uses Of The Social Transformation Of American Medicine: The Case Of Law, Timothy Stoltzfus Jost
The Uses Of The Social Transformation Of American Medicine: The Case Of Law, Timothy Stoltzfus Jost
Scholarly Articles
Not available.
Litigation Expenses And The Alternate Minimum Tax, Brant J. Hellwig, Gregg D. Polsky
Litigation Expenses And The Alternate Minimum Tax, Brant J. Hellwig, Gregg D. Polsky
Scholarly Articles
Not available.
A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla
A Call To Leadership: The Future Of Race Relations In Virginia, Rodney A. Smolla
Scholarly Articles
Not available.
A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill
A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill
Scholarly Articles
The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …
The Sarbanes-Oxley Act And Fiduciary Duties, Lyman P. Q. Johnson, Mark A. Sides
The Sarbanes-Oxley Act And Fiduciary Duties, Lyman P. Q. Johnson, Mark A. Sides
Scholarly Articles
This article explores the implications of the Sarbanes-Oxley Act of 2002 for fiduciary duty analysis in corporate law. The article examines those provisions of the Act, and recent SEC, NYSE and NASDAQ rules, that most pointedly bear on corporate governance. The article develops in detail exactly how Sarbanes-Oxley and those rules may alter state fiduciary duty law. Sarbanes-Oxley makes unprecedented federal inroads into the area of corporate governance and, although the fact of federal incursion into corporate governance is important in its own right, the more intriguing issue concerns the eventual interplay between federal and state law. Specifically, on various …
Introduction To The Symposium On Legal Externships: Learning From Practice, J.P. "Sandy" Ogilvy
Introduction To The Symposium On Legal Externships: Learning From Practice, J.P. "Sandy" Ogilvy
Scholarly Articles
No abstract provided.
(Un)Masking Race-Based Intracorporate Conspiracies Under The Ku Klux Klan Act, Catherine E. Smith
(Un)Masking Race-Based Intracorporate Conspiracies Under The Ku Klux Klan Act, Catherine E. Smith
Scholarly Articles
The intracorporate conspiracy doctrine should not be applicable to § 1985(3) conspiracies. Section 2 of the Ku Klux Klan Act was designed to specifically challenge collective action and eliminate the many ways in which individuals conspired to engage in civil rights violations. Some commentators may argue that race-based intracorporate agreements are actionable under other federal antidiscrimination laws and state causes of actions. However, § 1985(3) fulfills a unique role in the national comprehensive civil rights scheme to eliminate different forms of bias-motivated and discriminatory actions. As the only federal civil conspiracy statute that punishes individuals who use collective resources to …
Constitutionalization Of Human Rights In Post-Soviet States And Latin America: A Comparative Analysis, Rett R. Ludwikowski
Constitutionalization Of Human Rights In Post-Soviet States And Latin America: A Comparative Analysis, Rett R. Ludwikowski
Scholarly Articles
This Article consists of four parts. The first, which is more general, addresses the question to what extent the system of governance adopted by the countries of the two regions affected the record of the states' protection of human rights. For instance, this Article considers whether democratization of the political system necessarily results in better protection of human rights. The second part analyzes the placement of human rights in the framework of the Latin American and post-Soviet constitutions. The third part identifies and discusses the problem of individual and group rights, an issue crucial for both regions. The fourth part …
Catholic Social Teaching And Its Impact On American Law: Observations On The Past And Reflections On The Future, Lucia A. Silecchia
Catholic Social Teaching And Its Impact On American Law: Observations On The Past And Reflections On The Future, Lucia A. Silecchia
Scholarly Articles
In recent years, greater attention has been paid to the influence of Catholic social teaching as a contributor to legal debates in American society. As it has developed, Catholic social teaching clearly envisions a role for the Church to play in shaping society. The interplay between Catholic social teaching and American law is a fascinating, complex, and, at times, tense relationship. That relationship is the subject of these observations and reflections. The first part of this discussion explores how leading Church documents define the proper scope of influence for Catholic social teaching. After this brief background, the discussion will turn …
Environmental Ethics From The Perspective Of Nepa And Catholic Social Teaching: Ecological Guidance For The 21st Century, Lucia A. Silecchia
Environmental Ethics From The Perspective Of Nepa And Catholic Social Teaching: Ecological Guidance For The 21st Century, Lucia A. Silecchia
Scholarly Articles
Over the years, a substantial body of Catholic social teaching has arisen to offer guidance as to the obligations that humanity has as stewards of creation. With ancient roots in Biblical text, and modern exploration in more recent texts, the connection between religious obligation and ecological responsibility has garnered much attention among Catholic thinkers - as well as among religious leaders of other faiths. This article explores the principles of Catholic social thought with respect to the environment and traces the development of those principles from their Biblical origins through the papacy of Pope John Paul II. In tandem with …
Evidentiary Surrogacy And Risk Allocation: Understanding Imputed Knowledge And Notice In Modern Agency Law, Marin Roger Scordato
Evidentiary Surrogacy And Risk Allocation: Understanding Imputed Knowledge And Notice In Modern Agency Law, Marin Roger Scordato
Scholarly Articles
This article deals with the imputed knowledge rule in agency law. The basic rule imputes to a principal knowledge or notice received by an agent within the scope of the agent's authority. The principal is deemed to have received the information in question even in the absence of any evidence that the agent successfully transmitted it to the principal.
As the article clearly demonstrates, the imputed knowledge rule is currently characterized by complexity and contradiction. The analysis developed in the article suggests that this convolution and uncertainty is the result of the existence of a fundamental tension residing at the …
May A Foreign Plaintiff Sue A Foreign Defendant For Conduct Outside The U.S. That Caused Antitrust Injury Outside The U.S.?, Antonio F. Perez
May A Foreign Plaintiff Sue A Foreign Defendant For Conduct Outside The U.S. That Caused Antitrust Injury Outside The U.S.?, Antonio F. Perez
Scholarly Articles
May the respondents, five foreign companies that purchased goods outside the United States from other foreign companies, pursue Sherman Act claims seeking recovery for overcharges paid in transactions occurring entirely outside U.S. commerce under the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. § 6a? Do such foreign plaintiffs lack standing under Section 4 of the Clayton Act, 15 U.S.C. § 15(a)?
“Just Say No!”: The Right To Refuse Psychotropic Medication In Long-Term Care Facilities, George P. Smith Ii
“Just Say No!”: The Right To Refuse Psychotropic Medication In Long-Term Care Facilities, George P. Smith Ii
Scholarly Articles
This Article examines the provisions of The Omnibus Budget Reconciliation Act of 1987 (OBRA '87) surveying the case law as such that deals with the rights of patients in mental institutions to refuse psychotropic medication. The article focuses first on an analysis of the different substantive and procedural rights afforded to patients under state common law, state constitutions and the federal Constitution. It then proceeds to evaluate the impact of OBRA '87 on the rights of long-term care patients who refuse medication and choose to accept minimal administrative hearings instead of pursuing full judicial proceedings designed to protect those rights. …
Patent And Antitrust, Happy Together?, Daniel F. Attridge, Gregory F. Corbett
Patent And Antitrust, Happy Together?, Daniel F. Attridge, Gregory F. Corbett
Scholarly Articles
No abstract provided.
The Geneva Proposals For Peace: Still Viable, Ziad J. Asali, Marshall J. Breger, Milton Viorst, Philip C. Wilcox Jr.
The Geneva Proposals For Peace: Still Viable, Ziad J. Asali, Marshall J. Breger, Milton Viorst, Philip C. Wilcox Jr.
Scholarly Articles
No abstract provided.
Does The Child Online Protection Act Violate The First Amendment?, Susanna Frederick Fischer
Does The Child Online Protection Act Violate The First Amendment?, Susanna Frederick Fischer
Scholarly Articles
The Supreme Court weighs in for a second time in the more than 5-year-old court battle over whether the Child Online Protection Act drafters have rectified the constitutional defects of the Communications Decency Act, which the Court struck down in 1997 on First Amendment grounds. In an effort to cure the CDA's lack of "narrow tailoring," the drafters of COPA have more narrowly defined the speech that is being regulated and have also narrowed the speakers who are subject to regulation.