Law Commons^™

An Opening For Civil Rights In Health Insurance After The Affordable Care Act, Valarie K. Blake

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Section 1557, the civil rights provision of the Affordable Care Act (“ACA”), is unmatched in its reach, widely applying race, gender, disability, and age discrimination protections across all areas of healthcare. This Article will explore the value added of a civil rights approach to combating health insurance discrimination when combined with other ACA anti-discrimination efforts that were designed to regulate the health insurance market. It will emphasize the role that section 1557 can play in combatting healthcare disparities and will explore the utility of disparate impact and disparate treatment claims to those cases. Lastly, the Article will posit that two …

Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino

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With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …

Against Administrative Judges, Kent H. Barnett

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The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …

The Role Of Business Counsel As Compliance Gatekeepers: Toward Understanding And Combatting Reckless Disregard For Legal And Ethical Compliance In Business Entities, Joan Macleod Heminway

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Sometimes, business entity clients and their principals do not seek, accept, or heed the advice of their lawyers. In fact, sometimes, they expressly disregard a lawyer’s instructions on how to proceed. In certain cases, the client expressly rejects the lawyer’s advice. However, some business constituents who take action contrary to the advice of legal counsel may fall out of compliance incrementally over time or signal compliance and yet (paradoxically) act in a noncompliant manner. These seemingly ineffectual varieties of the lawyer/client relationship are frustrating to the lawyer.

This short article aims to explain why representatives of business entities who consider …

Overtreatment And Informed Consent: A Fraud-Based Solution To Unwanted And Unnecessary Care, Isaac ("Zack") D. Buck

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According to multiple accounts, the administration of American health care results in as much as $800 billion in wasted spending due largely to the provision of overly expensive, inefficient, and unnecessary services. Beyond inflicting fiscal pain on the nation’s pocketbook, this waste has no clinical benefit — and often results in unnecessary hospital stays, cascading follow-up procedures, and time-wasting inconvenience for American patients. But aside from the mere annoyance of unnecessary care, the administration of overtreatment — that is, unnecessary care in and of itself — causes harm to the patient. Excessive care is deficient care. Unnecessary care risks potential …

Leading The Future: Symposium On Professional Leadership Education: Foreword, Douglas A. Blaze

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No abstract provided.

Training Leaders The Very Best Way We Can, Douglas A. Blaze, George Lewis

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No abstract provided.

California Fair Trade: Antitrust And The Politics Of “Fairness” In U.S. Competition Policy, Laura Phillips Sawyer

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In the decades before World War II, U.S. antitrust law was anything but settled. Considerable pressure for antitrust revision came from the states. A perhaps unlikely leader, Edna Gleason, organized California’s retail pharmacists and coordinated trade networks to monitor and enforce Resale Price Maintenance (RPM) contracts, a system of price-fixing, then known as “fair trade.” Progressive jurists, including Louis Brandeis and institutional economist E. R. A. Seligman, supported RPM as a protection to independent proprietors. The breakdown of legal and economic consensus regarding what constituted “unfair competition” allowed businesspeople to act as intermediaries between heterodox economic thought and contested antitrust …

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

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The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural …

What Is (And Isn't) Healthism, Jessica L. Roberts, Elizabeth Weeks Leonard

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What does it mean to discriminate on the basis of health status? Health is, of course, relevant in a number of ways. It can speak to the length of our lives, our ability to perform mentally and physically, our need for health care, and our risk of injury and incapacity. But the mere relevance of a particular attribute does mean that considering it should be legally permissible. Moreover, the potential harms that may result from health-status discrimination raise important moral questions. This Essay explores when differentiating on the basis of health is socially acceptable and, by contrast, when it is …

Brands, Competition Law And Ip, Maurice Stucke

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No abstract provided.

The Role Of Law In Reducing Barriers To Citizens Participation In Community-Based Natural Resource Management Models, Becky Jacobs

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Environmental protection and natural resource management are highly complicated, dynamic processes intersecting natural and social systems. Policies related to these issues involve a broad array of inputs, including, among others, scientific data, legal information, value judgments, philosophical perspectives, and economic decisions, and they can have momentous consequences not only at international, national, and state levels, but also for communities and individuals. In recognition of these impacts, policy and lawmakers in 50 countries are pursuing community-based approaches to environmental protection and natural resource management by delegating some degree of management and decision-making authority over parks or other protected areas; forests; water, …

On Balance: Leading By Leaving, Paula Schaefer

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Even though women make up half of law school classes in the U.S., hold half of elite judicial clerkships, and accept almost half of the jobs in large U.S. law firms, only a small number of women make partner or serve in leadership roles in those firms. Much has been written about the things that stand in the way of gender equality in elite law firms. Yet misconceptions persist about why the time demands of “big law” have a disproportionate impact on women.

This Article points to evidence that is contrary to those misconceptions and argues that the women – …

Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael Wells

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Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how …

In Pari Delicto Deconstructed: Dismantling The Doctrine That Protects The Business Entity's Lawyer From Malpractice Liability, Paula Schaefer

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The equitable doctrine in pari delicto provides that a plaintiff who participated equally with a defendant in wrongdoing cannot pursue a claim against the defendant. Courts often describe dual policies underlying the in pari delicto defense: deterrence of illegal conduct and protection of the sanctity of the courts. Lawyers invoke in pari delicto when sued for malpractice for failing to protect a client from legal liability. A common scenario involves a lawyer advising a client to lie under oath; the client follows the advice and suffers damage as a result. When the client sues the lawyer for legal malpractice based …

Four Reasons Why Readers Hate Go Set A Watchman (And One Reason Why I Don't), Judy Cornett

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No abstract provided.

Access To Justice: What To Do About The Law Of Wills, Iris Goodwin

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No abstract provided.

The Legal And Medical Ethical Entanglements Of Infant Male Circumcision And International Law, Paul Mclaughlin

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The practice of infant male circumcision has been debated by legal and medical experts for years. The practice, once seen as a social norm, has come under opposition by children’s rights, legal, and medical organisations around the world. In order to meet the requirements of international treaty law and allow infant male children the fullest opportunity for self determination, infant male circumcision must be treated under the law and by medical practitioners with the same degree of opposition that female genital mutilation has received.

Chinese Real Estate Law And The Law And Development Theory: Comparing Law And Practice, Gregory M. Stein

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China did not adopt a modern Property Rights Law until 2007, which means that most modern real estate development occurred before there was a comprehensive property law to govern it. Moreover, business conventions in China frequently diverge from published laws, and the rules that professionals follow do not always comply with legal requirements. This article addresses how real estate professionals in China contend with these legal inconsistencies and uncertainties. It also asks whether China is disproving the traditional law and development model, which holds that transparent property and contract laws are a prerequisite to robust economic development. Part II introduces …

Some Early Thoughts On Liability Standards For Online Providers Of Legal Services, Benjamin H. Barton

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This Article discusses a classic intersection of law, science, and technology. Just like common law courts adjusted the "mailbox rule" to cover fax machines, courts will have to adjust their existing approach to liability for harmful legal services, given the existence of new providers of legal services online.' The result is a clash of cultures between one of America's most conservative2 institutions-its common law courts-and some of its most aggressively forward looking ones-internet entrepreneurs.

Making Sense Of Mid-Term Modifications Of At-Will Employment Contracts, Alex B. Long

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No abstract provided.

Employment Discrimination In The Legal Profession: A Question Of Ethics?, Alex B. Long

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In recent years, the ABA and local bar leaders have taken numerous steps to raise awareness about the need to increase diversity within the legal profession. In order to increase diversity, however, the legal profession must also seek to eliminate unlawful employment discrimination. In most workplaces, an employer’s main concern with respect to discrimination is the possibility of civil suit. However, in a surprising number of states, rules of professional conduct either explicitly prohibit employment discrimination on the part of lawyers or could be easily read to do so. This paper will examine the extent to which it is desirable …

Tennessee Workers: Dying For A Job, Fran Ansley

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No abstract provided.

Recognizing And Reinvigorating Medical Necessity, Isaac "Zack" D. Buck

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No abstract provided.

The Lawyer As Public Figure For First Amendment Purposes, Alex B. Long

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Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can …

When Competition Fails To Optimize Quality: A Look At Search Engines, Maurice Stucke, Ariel Ezrachi

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The European Commission’s Statement of Objections forms the latest addition to the ongoing debate on the possible misuse of Google’s position in the search engine market. The scholarly debate, however, has largely been over the exclusionary effects of search degradation. Less attention has been attributed to the dimension of quality – whether and how a search engine, faced with rivals, could degrade quality on the free side.

We set out to address this fundamental issue: With the proliferation of numerous web search engines and their free usage and availability, could any search engine degrade quality?

We begin our analysis with …

University Technology Transfer - Profit Centers Or Black Holes: Moving Toward A More Productive University Innovation Ecosystem Policy, Brian Krumm

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No abstract provided.

Introduction: Big Data And Competition Policy, Maurice Stucke

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Big Data and Big Analytics are a big deal today. Big Data is playing a pivotal role in many companies' strategic decision-making. Companies are striving to acquire a 'data advantage' over rivals. Data-driven mergers are increasing. These data-driven business strategies and mergers raise significant implications for privacy, consumer protection and competition law. At the same time, European and United States' competition authorities are beginning to consider the implications of a data-driven economy on competition policy. In 2015, the European Commission launched a competition inquiry into the e-commerce sector and issued a statement of objections in its Google investigation. The implications …

Fresh Approaches To Teaching Transactional Drafting, Joan Macleod Heminway, Richard K. Neumann Jr., Katherine M. Koops

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No abstract provided.

Do Progressive Property Scholars Really Want To Limit Nollan And Dolan To Administrative Exactions, Gregory M. Stein

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No abstract provided.