Law Commons^™

Newsroom: Horwitz Addresses Rally For Homeless 09/15/2016, Amanda Milkovits, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

All Faculty Scholarship

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules …

Child Protection Law As An Independent Variable, Josh Gupta-Kagan

Faculty Publications

Child protection professionals work in a multidisciplinary system in which the law and the family court play central roles and which collects an increasing amount of data. Yet we know little about what impact the law has on whether a child is removed by child protective services, is deemed neglected by a family court, or reunifies with a parent. Do state‐to‐state variations in child protection laws, or changes by individual states to their laws, lead to different outcomes for children and families? The dramatic variations in child welfare practice from one state to another suggest that legal variations do matter. …

Book Review Of, Women And Justice For The Poor: A History Of Legal Aid, 1863-1945, By Felice Batlan, Maggie Kiel-Morse

Articles by Maurer Faculty

No abstract provided.

Immigration And Disability In The United States And Canada, Mark Weber

College of Law Faculty

Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …

Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach

All Faculty Scholarship

In this chapter I discuss the history and basic incentive effects of two key U.S. cash assistance programs aimed at families with children. Starting roughly in the 1980s, critics of the Aid to Families with Dependent Children (AFDC) program argued that the program -- designed largely to cut relatively small checks -- failed to end poverty or promote work. After years of federally provided waivers that allowed states to experiment with changes to their AFDC programs, the critics in 1996 won the outright elimination of AFDC. It was replaced by the Temporary Assistance to Needy Families (TANF) program, over which …

Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson

All Faculty Scholarship

Mediation scholars have long debated which mediator “style” or “model” is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a “grid” of mediator orientations comprised of what came to be known as “facilitative mediation” and “evaluative mediation.” A more recent addition to the grid—and one that is almost universally recognized as a distinct model—is “transformative mediation.” These three models are so embedded in the literature of mediation that they have been called “the big three.” The influence of Riskin’s work cannot be overstated. It has resonated within the community of …

Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

Lawyers And The Secret Welfare State, Milan Markovic

Faculty Scholarship

This Article suggests that the United States maintains a secret welfare state. The secret welfare state exists because of lawyers’ ubiquitous use of questionable practices in representing clients before benefit-granting government agencies, which enable thousands of individual to collect public benefits who may not qualify for them. This Article focuses in particular on lawyers’ handling of evidence of nondisability in Social Security Disability Insurance (SSDI) proceedings and participation in Medicaid planning. It may be possible that the legal profession’s central role in the distribution of public benefits is an obstacle to a fairer and more transparent social safety net.

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

All Faculty Scholarship

The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

Guardian Ad Litem, Legal Clinic Program

Course Descriptions and Information

GUARDIAN AD LITEM (GAL): This clinic focuses on legal advocacy on behalf of children, while providing students with a strong foundation in lawyering skills and values. This clinic addresses constitutional, statutory, and common laws impacting children, the legal interests of parents, and the government and the law’s evolving conception of children’s rights.

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

Cash Is King: How Market-Based Strategies Have Corrupted Classrooms And Criminal Courts In Post-Katrina New Orleans, 39 Seattle U. L. Rev. 1199 (2016), Olympia Duhart, Hugh Mundy

UIC Law Open Access Faculty Scholarship

On many accounts, it is a tale of two cities. The headlines and marketing machines tout to the world that “The Big Easy is Back.” But beyond the celebrations and parades, the story for poor Katrina survivors is very different. While many residents and businesses are enjoying a resurgence a decade after Katrina stormed through, others in post-Katrina New Orleans have a different experience. More than ten years after Hurricane Katrina, the city still struggles with systemic failures. These problem areas include housing, health care, mental health treatment, employment, education, and the criminal justice system. All of these challenges are …

On The Expansion Of “Health” And “Welfare” Under Medicaid, Laura Hermer

Faculty Scholarship

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the "deserving" poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into …

Irresponsibly Taxing Irresponsibility: The Individual Tax Penalty Under The Affordable Care Act, Francine J. Lipman, James Owens

Scholarly Works

In recent decades, Congress has used the federal income tax system increasingly to administer and deliver social benefits. This transition is consistent with the evolution of the American welfare system into workfare over the last several decades. As more and more social welfare benefits are conditioned upon work, family composition, and means-tested by income levels, the income tax system where this data is already systematically aggregated, authenticated, and processed has become the go-to administrative agency.

Nevertheless, as the National Taxpayer Advocate Nina Olson has noted there are “substantial differences between benefits agencies and enforcement agencies in terms of culture, mindset, …

Politically Correct Eugenics, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer

Articles in Law Reviews & Other Academic Journals

A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees …

Health And Taxes: Hospitals, Community Health And The Irs, Mary Crossley

Articles

The Affordable Care Act created new conditions of federal tax exemption for nonprofit hospitals, including a requirement that hospitals conduct a community health needs assessment (CHNA) every three years to identify significant health needs in their communities and then to develop and implement a strategy responding to those needs. As a result, hospitals must now do more than provide charity care to their patients in exchange for the benefits of tax exemption, and the CHNA requirement has the potential both to prompt a radical change in hospitals’ relationship to their communities and to enlist hospitals as meaningful contributors to community …

The Collective Fiduciary, Lauren R. Roth

Scholarly Works

Can fiduciaries be made to serve public goals? The movement under the Patient Protection and Affordable Care Act (“ACA”) towards universal access to health insurance requires us to focus on the fiduciary relationships between large organizations providing access to healthcare and the populations they serve. These relationships have become a collective undertaking instead of a direct, personal relationship.

In this Article, I introduce the concept of the collective fiduciary in response to the shift towards uniform, national goals in the realm of health insurance and healthcare. Only through a collective approach can we hold fiduciaries accountable for the welfare of …

Medicaid Planning In Idaho, John A. Miller

Articles

No abstract provided.

Reimagining The Risk Of Long-Term Care, Allison K. Hoffman

All Faculty Scholarship

U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability — a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity. The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called “care-recipient” risk. The second arises out of the risk of becoming responsible for someone else’s care, which …

Detoxing The Child Welfare System, Allison E. Korn

Faculty Scholarship

This Article considers the varying reasons why drug policies informing child welfare interventions are not evolving as part of the drug policy reform movement, which has successfully advocated for initiatives that decrease mass incarceration, end mandatory minimums, and decriminalize or legalize marijuana use and possession. Many existing child welfare laws and policies that address parental drug use rely on the premise that prenatal exposure to a controlled substance causes inevitable harm to a child. Furthermore, they presume that any amount of drug use by a parent places a child in imminent danger, or is indicative of future risk of harm. …

Nurturing Wings Or Clipping Them Off: The Philippine Approach To Female Labor Migration And A Potentially Redeeming Role For The Commission On Human Rights, Emily Sanchez Salcedo

Center for Business Research and Development

The large-scale migration of Filipino workers started in the 1970’s as inadequate local employment and livelihood opportunities pointed to overseas opportunities in the booming economy of oil-rich countries in the Middle East. Though initially dominated by male construction workers and seafarers, female migrant workers, mostly in the health care professions, in domestic services and in the entertainment industry, followed suit and, in the most recent available statistical report, have even slightly outnumbered the men. As of the end of 2014, 50.43% of the 2.32 million overseas Filipino workers are women. Collectively, these overseas workers sent about 27 billion dollars in …

Concerns And Structural Barriers Associated With Wic Participation Among Wic-Eligible Women, Cindy H. Liu, Heidi H. Liu

All Faculty Scholarship

Objectives: To examine sociodemographic, psychosocial concerns, and structural barriers associated with women's participation in the USDA's Women, Infants, and Children (WIC) program among those eligible for the program.

Design and Sample: 1,634 White, African American, Hispanic, and Asian/Pacific Islander (A/Pl) women from the New York City area completed the Pregnancy Risk Assessment Monitoring System (PRAMS) from 2004-2007, a population-based survey.

Measurements: Data on WIC eligibility and participation, sociodemographic details, unintended pregnancy, social support, and structural barriers were evaluated.

Results: Hispanics and Blacks were 4.1 and 2.4 times more likely to participate, respectively, in the WIC program relative to Whites. Mothers …