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2019

Articles 1 - 30 of 159

Full-Text Articles in Law

Specialty Drugs And The Health Care Cost Crisis, Isaac ("Zack") D. Buck Oct 2019

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 Sep 2019

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 Jul 2019

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

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No abstract provided.


Blockchains, Corporate Governance, And The Lawyer's Role, Joan Macleod Heminway Jul 2019

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 Jul 2019

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.


Designing Deregulation: The Potus's Place In The Process, Joan Macleod Heminway Jun 2019

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 May 2019

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 Apr 2019

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 Apr 2019

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

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No abstract provided.


When Congress Acts: Judicial Procedural Innovation And The Pslra, Briana L. Rosenbaum Apr 2019

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

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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 Apr 2019

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.


Lawyering For Social Enterprise, Joan Macleod Heminway Apr 2019

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 …


Mr. Toad’S Wild Ride: Business Deregulation In The Trump Era, Joan Macleod Heminway Apr 2019

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 …


Represent, Teri Dobbins Baxter Apr 2019

Represent, Teri Dobbins Baxter

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No abstract provided.


Judicial Disqualification: Federal-State Distinctions, Jeffrey W. Stempel Mar 2019

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.


In Defense Of The American Community Survey, Michael Lewyn Jan 2019

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.


Victims Under Attack: North Carolina's Flawed Rule 609, Daniel R. Tilly Jan 2019

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 …


Rebooting Empathy For The Digital Generation Lawyer, Lauren A. Newell Jan 2019

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

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No abstract provided.


Why Is The Protective Order Project Still In Business; Or, If The Family Justice Clinic Has Been At It So Long, Why Hasn’T Anything Changed? Domestic Violence As A Continuing Societal Concern, Christine M. Scartz, Chelsea Reese Jan 2019

Why Is The Protective Order Project Still In Business; Or, If The Family Justice Clinic Has Been At It So Long, Why Hasn’T Anything Changed? Domestic Violence As A Continuing Societal Concern, Christine M. Scartz, Chelsea Reese

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This Article explores the Georgia Law Family Violence and the continuing societal concern surrounding domestic violence.


What Is International Trade Law For?, Harlan G. Cohen Jan 2019

What Is International Trade Law For?, Harlan G. Cohen

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Events of the past few years, including the Brexit vote in the United Kingdom and the demise of the Trans-Pacific Partnership and election of Donald Trump as President in the United States, have reignited debates about the global trade regime. In particular, many have begun to question whether the trade regime has done enough for those who feel left behind by globalization. While some have held fast to the view that redistribution of trade’s gains is primarily a matter of domestic policy, others have suggested tweaks to the international trade agreements aimed at better spreading the wealth.

But what if …


Interstitial Space Law, Melissa J. Durkee Jan 2019

Interstitial Space Law, Melissa J. Durkee

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Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this “attributed lawmaking.”

Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, …


Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller Jan 2019

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

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An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …


Method And Dialogue In History And Originalism, Logan E. Sawyer Iii Jan 2019

Method And Dialogue In History And Originalism, Logan E. Sawyer Iii

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There is a sharp separation between the scholarly literature of originalists and professional historians. Originalists cite one another, but regularly ignore recent work by historians. Historians are generally happy to return the favor. Engagement between the two communities is too often limited to methodological disputes and amicus briefs. As a result, historical inquiry offers less to constitutional law than it might, and constitutional lawyers offer less to history than they could. Some of this separation is due to unavoidable methodological tension, but those tensions have not always frustrated productive dialogue. Originalism, in fact, emerged as an important theory of constitutional …


Book Review: Not Enough: Human Rights In An Unequal World, Harlan G. Cohen Jan 2019

Book Review: Not Enough: Human Rights In An Unequal World, Harlan G. Cohen

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Review of the book Not Enough: Human Rights in an Unequal World. By Samuel Moyn. Cambridge, Massachusetts, Harvard University Press 2018. Pp. ix, 220. Index.


Digital Taxation Lessons From Wayfair And The U.S. States’ Responses, Walter Hellerstein, Jeffrey Owens, Christina Dimitropoulou Jan 2019

Digital Taxation Lessons From Wayfair And The U.S. States’ Responses, Walter Hellerstein, Jeffrey Owens, Christina Dimitropoulou

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This article provides a detailed and structured synthesis of the discussion that took place in the context of the "fireside chat" event held by the WU Global Tax Policy Center at the Institute of Austrian and International Tax Law on December 17, 2018, at which Hellerstein was the guest speaker. The event was one of the initiatives of the Digital Economy Tax Network, a multi-stakeholder forum, which organized a workshop on the VAT/goods and services tax and the digital economy December 17-18, 2018, in Vienna. In this article, the authors examine the lessons that the U.S. Supreme Court's Wayfair decision …


Who Tells Your Story: The Legality Of An Shift In Racial Preferences Within Casting Practices, Nicole Ligon Jan 2019

Who Tells Your Story: The Legality Of An Shift In Racial Preferences Within Casting Practices, Nicole Ligon

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No abstract provided.


Protecting Auto Accident Victims From The Um/Uim Insurer Identity Crisis, Jeffrey W. Stempel, Erik S. Knutsen Jan 2019

Protecting Auto Accident Victims From The Um/Uim Insurer Identity Crisis, Jeffrey W. Stempel, Erik S. Knutsen

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Automobile liability insurance is mandatory for drivers in all states, so as to provide for an available source of compensation for auto accident victims. Yet more than 20% of drivers in some states drive without valid, collectible automobile liability insurance. Another vast proportion of drivers have woefully inadequate financial limits of liability insurance that could not pay for even a modest percentage of a typical accident victim's compensatory needs. An auto accident victim cannot choose which tortfeasor driver injures her in a collision. Without the at-fault tortfeasor driver's liability insurance to act as a source of full compensation for her …


A New Water Law Vista: Rooting The Public Trust Doctrine In The Courts, Joseph Regalia Jan 2019

A New Water Law Vista: Rooting The Public Trust Doctrine In The Courts, Joseph Regalia

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Courts largely view the public trust doctrine as limited by state legislative and executive policy. According to this widespread theory, states may be required to hold in trust a handful of historically-big waterbodies (referred to as “navigable” waters) for certain uses like commerce, but beyond that, states are free to dispose of water without considering the public’s interests.36 So there is no requirement that states consider, for example, the public’s interest in conserving Walker Lake, a lake much older that the state of Nevada itself. And not only can the public not meaningfully challenge a state’s legislative or executive decisions …


Does The Reasonable Man Have Obsessive Compulsive Disorder?, Lucille Jewel Jan 2019

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 Jan 2019

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 …