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 …

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 …

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.

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

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No abstract provided.

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 …

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

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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 …

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 …

Standing On The Shoulders Of Giants, Paula Schaefer

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No abstract provided.

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.

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

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No abstract provided.

Judicial Disqualification: Federal-State Distinctions, Jeffrey W. Stempel

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Federal and state law regarding disqualification (aka recusal) of judges is both similar and different, requiring that counsel be aware of federal and state statutes, the Nevada Code of Judicial Conduct and even constitutional considerations.

Developing A Culturally Competent Legal Research Curriculum, Shamika Dalton

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No abstract provided.

In Defense Of The American Community Survey, Michael Lewyn

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Discusses policy and constitutional arguments against the ACS, a yearly survey administered by the Census Bureau.

The Masculinity Mandate: #Metoo, Brett Kavanaugh, And Christine Blasey Ford, Ann C. Mcginley

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In fall 2019, the Senate Judiciary Committee held hearings involving Dr. Christine Blasey Ford's testimony about then-Judge Brett Kavanaugh's alleged behavior at a high school party gone awry.

This essay uses identity performance and multidimensional masculinities theories to analyze the hearings, specifically to consider the gender, race, and class performances of the participants, and how partisans and non-partisans interpreted those performances. This examination demonstrates that the judgment concerning masculinity and femininity performances and their appropriateness is, to a certain extent, in the eye of the beholder. By the same token, public interpretations are not arbitrary. Rather, at least in this …

Advanced Artificial Intelligence And Contract, John Linarelli

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The aim of this article is to inquire whether contract law can operate in a state of affairs in which artificial general intelligence (AGI) exists and has the cognitive abilities to interact with humans to exchange promises or otherwise engage in the sorts of exchanges typically governed by contract law. AGI is a long way off but its emergence may be sudden and come in the lifetimes of some people alive today. How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of capacity to engage in promising and …

Victims Under Attack: North Carolina's Flawed Rule 609, Daniel R. Tilly

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Evidence law in North Carolina senselessly punishes victims of domestic and sexual violence by broadly sanctioning witness impeachment with prior convictions – no matter the implicit prejudice to the witness or how little the conviction bears on credibility. The North Carolina approach is an outlier. Under Rule 609 of the Federal Rules of Evidence, the use of conviction evidence for impeaching witness credibility is confined to felonies and crimes involving dishonest acts or false statements. Their use must also satisfy judicial balancing tests aimed at protecting against unfair prejudice to the witness. The majority of states take a similar or …

The New Singapore Mediation Convention: The Process And Key Choices, Harold Abramson

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No abstract provided.

Make New York Affordable Again, Michael Lewyn

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Suggests a package of zoning reforms to hold down New York City housing costs, and responds to counterarguments.

Do You Believe In Ghost Apartments?, Michael Lewyn

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According to the popular press, expensive cities are being overrun by "ghost apartments"- condominiums owned by wealthy foreigners, but used as investments rather than being rented out to local residents. This article points out that such apartments are in fact a very small percentage of housing supply, even in some cities that are supposedly overran with such condos.More importantly, the existence of new “ghost apartments” does not justify exclusionary zoning policies. If a city popular with foreign investors discourages construction of new housing, investors are likely to purchase older housing units, outbidding local residents for those units. In this scenario, …

Rebooting Empathy For The Digital Generation Lawyer, Lauren A. Newell

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No abstract provided.

Singapore Mediation Convention Reference Book, Harold Abramson (Faculty Editor)

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No abstract provided.

Relationships And Ethics In The Land Use Game, Patricia E. Salkin, Thomas Brown, Aisha Scholes

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Ethical considerations in the land use decision making process can be organized into a number of categories, including, first and foremost, the broad subject of conflicts of interest.1 Players in the land use game can find themselves in real or perceived conflicts situations based on personal financial interests resulting from investments, including businesses and real estate holdings (such as the location of their property vis-à-vis the location of the subject property before the Board), employment for themselves or members of their immediate family, and memberships in nonprofit organizations that may be either passive or active (e.g., simply dues paying member …

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

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In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett

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The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

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In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

Environmental Law, Travis M. Trimble

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In 2017,1 district courts in the United States Court of Appeals for the Eleventh Circuit decided three cases that clarified issues arising under the Clean Water Act (CWA). 2 The United States District Court for the Southern District of Georgia preliminarily enjoined the Environmental Protection Agency (EPA) and the Army Corps of Engineers from enforcing the Waters of the United States Rule (WOTUS Rule), 3 a regulatory attempt to define the term "Waters of the United States," which is a jurisdictional threshold for agencies' regulatory authority under the CWA.4 Also, the United States District Court for the Northern District of …