Law Commons^™

Tacit Collusion On Steriods - The Tale On Online Price Transparency, Advanced Monitoring And Collusion, Maurice Stucke

Scholarly Works

No abstract provided.

The Trouble With Transitions: Preserving Government Records During A Presidential Transition, Sarah C. Slinger, Nicholas Mignanelli

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Times of transition from administration to administration are often, if not always, trying periods for the United States and its people. In particular, concerns arise over the preservation of documents from one administration to the next. This is especially true when the torch of executive power passes from one party to the other. Although preservation of information is a seemingly objective endeavor, it is difficult to abstain from politics when the documents involved are inherently political. Recently, the Trump Administration has expressed its intentions to scale back the size of government and take key offices—such as the Department of Energy—in …

Shareholder Wealth Maximization As A Function Of Statutes, Decisional Law, And Organic Documents, Joan Macleod Heminway

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In context, corporate law is often credited with creating, hewing to, or reinforcing a shareholder wealth maximization norm. The now infamous opinion in Dodge v. Ford Motor Co. describes the norm in a relatively bald and narrow way: "A business corporation is organized and carried on primarily for the profit of the stockholders." As a matter of theory and policy, commentators from the academy (law and business) and practice (lawyers and judges) have taken various views on this asserted norm — ranging from characterizing the norm as nonexistent or oversimplified to maintaining it as simple fact.

In an effort to …

Memorial: William J. (Bill) Beintema (1944-2015), Sibyl D. Marshall, Scott Childs

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No abstract provided.

A Taxonomy And Evaluation Of Successor Liability (Revisited), George Kuney

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Successor liability does not consist of just one doctrine or exception to the general corporate rule of non-liability for asset purchasers, but of many. There are two broad groups of successor liability doctrines, those that are judge-made (the “common law” exceptions) and those that are creatures of statute. Both represent a distinct public policy that in certain instances and for certain liabilities, the general rule of non-liability of a successor for a predecessor’s debts following an asset sale should not apply. With regard to the judge-made doctrines, some commentators have asserted that they are basically a species of liability based …

Permissible Negligence And Campaigns To Suppress Rights, Glenn Harlan Reynolds

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In his The Second Amendment Right To Be Negligent, 68 Fla. L. Rev. 1 (2016), Andrew McClurg looks at statutory protections shielding gun owners and sellers from liability in cases of theft, etc. in terms of what he calls a constitutional “right to be negligent” under the First and Second Amendments. In this brief response, I look at that question, and also touch, briefly, on the to-me interesting aspect that the protection enjoyed by publishers under the First Amendment was created by judicial action, while that enjoyed under the Second Amendment was instead the product of legislation. But, in short, …

Old-School Rhetoric And New-School Cognitive Science: The Enduring Power Of Logocentric Categories, Lucille A. Jewel

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For thousands of years, the contours of Western legal argument have remained unchanged. Since the time of the ancient Greeks, lawyers have been presenting arguments in the same basic format, with a heavy reliance on the concept of logos, the idea that arguments are most persuasive when presented in a clear deductive logical structure using clean-cut categories. Forming the basis for the terms that appear in logocentric legal arguments, categories allow humans to group facts and information together into classes. For instance, chairs, tables, and beds occupy the category of furniture and cars; trucks, and motorcycles occupy the category of …

Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, And Hidden Risks, Teri Dobbins Baxter

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Although debates about access to healthcare and healthcare financing have been in the headlines for years, attention has only sporadically been focused on new and resurgent health challenges in the form of outbreaks of contagious diseases. One obvious weapon in the fight against outbreaks is vaccination. Many vaccines have been proven safe and highly effective, but vaccine opponents have been vocal and influential, and even some who work in healthcare facilities distrust vaccines. The tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many healthcare policy and legal scholars to explore the …

Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, Leidos, Inc., Fka Saic, Inc., Petitioners, V. Indiana Public Retirement System, Indiana State Teachers’ Retirement Fund, And Indiana Public Employees’ Retirement Fund, Respondents, No. 16-581 (S. Ct. Sept. 7, 2017), Joan Macleod Heminway, J. Robert Brown, James D. Cox, Lyman P.Q. Johnson

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This Amicus Brief was filed with the U.S. Supreme Court on behalf of nearly 50 law and business faculty in the United States and Canada who have a common interest in ensuring a proper interpretation of the statutory securities regulation framework put in place by the U.S. Congress. Specifically, all amici agree that Item 303 of the Securities and Exchange Commission's Regulation S-K creates a duty to disclose for purposes of Rule 10b-5(b) under the Securities Exchange Act of 1934.

The Court’s affirmation of a duty to disclose would have little effect on existing practice. Under the current state of …

State Misdemeanant, Federal Felon: Adolescent Sexual Offenders And The Ina, Michael J. Higdon

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At the age of eighteen, Alberto Velasco-Giron had sex with his fifteen-year old girlfriend. As a result, he was deported.

To understand how this could happen, we have to back up a bit. In 1988, Congress amended the Immigration and Nationality Act (“INA”) to state that any alien who commits an “aggravated felony” is subject to deportation. Since that time, Congress has continuously supplemented the definition of aggravated felony to include more and more crimes, the result being that noncitizens were subject to deportation for an ever-growing list of offenses. In 1996, the definition was revised yet again to include …

Remedying Stigma-Driven Health Disparities In Sexual Minorities, Valarie K. Blake

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This paper explores the health harms of stigma in both patient-provider relationships and health insurer arrangements, before turning to legal solutions to combat healthcare discrimination on the basis of sex. It argues that Section 1557 of the Affordable Care Act is aptly designed to remedy stigma against sexual minorities in healthcare and has already done significant work to that end. This article also discusses the implications of repeal of either the ACA or Section 1557.

Can They Do That?: The Limits Of Governmental Power Over Medical Treatment, Paul Mclaughlin

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No abstract provided.

Why Don't Some White Supremacist Groups Pay Taxes?, Eric Franklin Amarante

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A number of white supremacist groups enjoy tax-exempt status. As such, these hate groups do not have to pay federal taxes and people who give money to these groups may take deductions on their personal taxes. This recognition not only results in potential lost revenue for government programs, but it also serves as a public subsidy of racist propaganda and operates as the federal government’s imprimatur of white supremacist activities. This is all due to an unnecessarily broad definition of “educational” that somehow encompasses the activities of universities, symphonies, and white supremacists. This Essay suggests a change in the Treasury …

Getting Specific About The Policy And Tools Of Securities Regulation: A Limited Response To Diversifying To Mitigate Risk: Can Dodd-Frank Section 342 Help Stabilize The Financial Sector?, Joan Macleod Heminway

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No abstract provided.

Title Ix’S Field Of (Unrealistic?) Dreams: If You Build It, Will They Come?, Becky Jacobs

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In the wonderful, magical realism of the iconic baseball movie, Field of Dreams, Kevin Costner’s character, Ray Kinsella, hears the phrase, “If you build it, he will come,” as he walks in his Iowa fields. The voice’s pronouncement was prophetic, and, when Ray builds a baseball diamond, Shoeless Joe Jackson and other long-dead baseball legends do come – they come to play baseball on his field. Authors R. Vivian Acosta and Linda Jean Carpenter also make use of this movie quote in one of their biennial reports on women in intercollegiate sport. Regrettably, however, while Title IX has made strides …

Marriage On Our Own Terms, Teri Dobbins Baxter

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No abstract provided.

Attorney Negligence And Negligent Spoliation: The Need For New Tools To Prompt Attorney Competence In Preservation, Paula Schaefer

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Though case law typically suggests otherwise, attorney negligence is the primary cause of negligent spoliation of evidence. With the advent of ediscovery, it became markedly more difficult for attorneys to competently guide their clients through the steps necessary to preserve evidence – particularly the categories of evidence most likely to help an opponent in a case. Unlike intentional spoliation instigated by an attorney, negligent spoliation is not the product of calculation. If an attorney were to undertake a cost-benefit analysis, negligent spoliation would not be a rational choice. The field of behavioral legal ethics provides insight into other reasons attorneys …

Engaging Health Insurers In The War On Prescription Painkillers, Valarie K. Blake

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While insurers have both the power and the motivation to curb the practice of harmful opioid prescribing, they may go about it in ways that could be counter-productive to larger public health goals. After all, insurers have historically discriminated against addiction like any other condition that leads to costly healthcare consumption. In the past, insurers have avoided enrolling addicted insureds and have limited rehabilitation services. To address this epidemic, insurers might engage in ways that could harm third parties. For example, to the extent they are permitted, insurers might avoid addicted enrollees altogether, or might limit coverage of addiction treatments …

Timekeeping And Wage Theft In The 21st Century, Alex B. Long

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No abstract provided.

The Sticks In The Chinese Property Rights Bundle, Gregory M. Stein

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No abstract provided.

The Cost Of High Prices: Embedding An Ethic Of Expense Into The Standard Of Care, Isaac ("Zack") D. Buck

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It is not profound to say that the American health care enterprise is in a state of flux. Since the passage of the Patient Protection and Affordable Care Act (ACA), the administration and delivery of health care in the country has undergone fundamental change. And this change continues unabated, as the Obama administration looks for ways to improve health care access and quality while limiting cost. It is a riddle that America has sought to solve for decades.

In the midst of this rapid and radical change, America’s crown jewel public health insurance program of Medicare faces an intensifying cost …

Pleading Actual Malice In Defamation Actions After Twiqbal: A Circuit Survey, Judy Cornett

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What does it take to satisfy the Twombly/Iqbal pleading standard when alleging actual malice in an action for defamation? The answer to this question, which has so far attracted little scholarly attention, not only has significant implications for public-figure defamation actions, but it also illustrates a larger problem with the Twiqbal pleading standard. The Twiqbal pleading standard requires a court to evaluate a motion to dismiss for failure to state a claim by, first, discarding conclusory allegations, and second, determining whether the remaining factual allegations state a claim that is “plausible on its face.” While Federal Rule of Civil Procedure …

Targeted, Concise Treatments For The American Health Care System, Isaac ("Zack") D. Buck

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No abstract provided.

Committee Proposal: Seaall Diversity And Inclusion Committee, Shamika Dalton

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This is a committee proposal that I submitted to the Southeastern Chapter of AALL, which was accepted, to create the first diversity and inclusion committee on the regional level of AALL.

Finding The Theory And Method For The Pedagogy Of Teaching Legal Research: A Response To Callister’S “Time To Blossom”, Paul Mclaughlin

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In his article “Time to Blossom,” Callister invites legal research experts to begin a discussion as to what theory and methodology would be most effective for teaching legal research. This article suggests that utilizing a tailored form of systems theory in conjunction with active learning methods would allow legal educators not only to teach students in an effective and understandable manner but also to adapt their teaching methods to correspond to changes in the legal research field.

Leveraging Academic Law Libraries To Expand Access To Justice, Paul Mclaughlin

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Academic law libraries are in a unique position to help citizens gain access to the court system and legal information. By creating clinics that focus on helping pro se patrons find and complete legal forms, academic law libraries would not only benefit their schools but also the justice system.

Conveying The Merits Of Print Sources To The Google Generation, Paul Mclaughlin

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No abstract provided.

Restoring Civil Rights To The Disabled In Health Insurance, Valarie K. Blake

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Disability discrimination permeates the American health insurance system. This discrimination is problematic because adequate health benefits at affordable rates are integral to a disabled person’s full participation and integration in society. Civil rights laws for the disabled, like the Americans with Disabilities Act (ADA) and its predecessor, the Rehabilitation Act of 1973 (Rehab Act), have done much to improve the lives of disabled Americans in the workplace and in public life. Yet in healthcare, particularly healthcare financing, civil rights efforts have been stunted.

Civil rights in healthcare have failed for a number of reasons yet one reason is undoubtedly the …

Rethinking The Americans With Disabilities Act’S Insurance Safe Harbor, Valarie K. Blake

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Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that …

Corporate Purpose And Litigation Risk In Publicly Held U.S. Benefit Corporations, Joan Macleod Heminway

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Benefit corporations have enjoyed legislative and, to a lesser extent, popular success over the past few years. This article anticipates what recently (at the eve of its publication) became a reality: the advent of a publicly held U.S. benefit corporation — a corporation with public equity holders that is organized under a specialized U.S. state statute requiring corporations to serve both shareholder wealth aims and social or environmental objectives. Specifically, the article undertakes to identify and comment on the structure and function of U.S. benefit corporations and the unique litigation risks to which a publicly held U.S. benefit corporation may …