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Articles 1 - 15 of 15
Full-Text Articles in Law
Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer
Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer
Journal Articles
This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern …
Patenting Genes And Genetic Methods: What’S At Stake?, Eileen M. Kane
Patenting Genes And Genetic Methods: What’S At Stake?, Eileen M. Kane
Journal Articles
The emergence of genetic medicine following decades of molecular biology research has been accompanied by the procurement of patent rights to many medically significant genes and methods for their use. The intellectual force of reductionism in the life sciences – to explain biological phenomena with molecular precision – generates direct conflicts with patent law’s exclusion of basic knowledge from patenting: laws of nature, natural phenomena, and abstract ideas must remain in the public domain. This is a period of renewed attention to the issue of patentable subject matter in the life sciences, with a particular focus on genetic patenting. Patents …
Immigrant Education And The Promise Of Integrative Egalitarianism, Victor C. Romero
Immigrant Education And The Promise Of Integrative Egalitarianism, Victor C. Romero
Journal Articles
Although not an equal protection case, Martinez v. Regents of the University of California challenges us to grapple with the Supreme Court’s post-Brown commitment to equal opportunity within the context of immigrant higher education. Sadly, Brown’s progeny from Bakke to Parents Involved reveals the cost of embracing a color-blind constitutionalism unmoored from a fundamental commitment to vigilantly combat subordination and dismantle unearned privilege. More optimistically, the Supreme Court’s gay rights jurisprudence developed in Romer v. Evans and Lawrence v. Texas provides insights into how a conservative court can accurately distinguish irrational discrimination from democratic deliberation, a lesson that might help …
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Journal Articles
The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory, structural and institutional …
Private Actors And Public Governance Beyond The State: The Multinational Corporation, The Financial Stability Board And The Global Governance Order, Larry Cata Backer
Private Actors And Public Governance Beyond The State: The Multinational Corporation, The Financial Stability Board And The Global Governance Order, Larry Cata Backer
Journal Articles
Transnational corporations are at the center of extraordinary and complex governance systems that are developing outside the state and international public organizations, and beyond the conventionally legitimating framework of the forms of domestic or international hard law. Though these systems are sometimes recognized as autonomous and authoritative among its members, they are neither isolated from each other nor from the states with which they come into contact. Together these systems may begin to suggest a new template for networked governance beyond the state, but one in which public and private actors are integrated stakeholders. This provides the source of the …
On The Evolution Of The United Nations’ 'Protect-Respect-Remedy' Project: The State, The Corporation And Human Rights In A Global Governance Context, Larry Cata Backer
On The Evolution Of The United Nations’ 'Protect-Respect-Remedy' Project: The State, The Corporation And Human Rights In A Global Governance Context, Larry Cata Backer
Journal Articles
The advent of contemporary economic globalization has substantially altered the regulatory environment in which economic enterprises operate. Once assumed to be creatures of the states that recognized and regulated their existence, economic enterprises today are increasingly capable of arranging their activities beyond the regulatory scope of any state or groups of states. That gap between operational and regulatory capacity has produced a sustained reaction at the national and international levels. States have sought to extend their power over corporations beyond their borders. International organizations have sought to develop supra national legal governance frameworks. This paper examines one of the more …
The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome
The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome
Journal Articles
Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind …
Crumbling Infrastructure, Crumbling Democracy: Infrastructure Privatization Contracts And Their Effects On State And Local Governance, Ellen Dannin
Journal Articles
Key arguments for privatizing public infrastructure range from providing money so cash-strapped governments can fix crumbling infrastructure and build much needed new infrastructure to shifting future financial risk from the public to a private contractor. The reality, though, is far different. Provisions commonly found in infrastructure privatization contracts make the public the guarantor of private contractors' expected revenues. Indeed, were it not for provisions that protect contractors from diminution of their expected returns, the contracts would be far shorter and much less complex. An effect of those contract provisions is to give private contractors a quasi-governmental status with power over …
Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye
Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye
Journal Articles
The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstanding arrest warrant. The California Supreme …
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
Journal Articles
As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …
Construction Defects: Are They “Occurrences”?, Chris French
Construction Defects: Are They “Occurrences”?, Chris French
Journal Articles
An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
Journal Articles
How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …
The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford
The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford
Journal Articles
This article discusses minor changes to the U.S. Bankruptcy Code that would make avoiding foreclosure possible for a homeowner who (a) is presently not able to make the mortgage service payments but (b) could make payments for a mortgage that is reduced to the market value of the property and to a fixed market mortgage rate. This article does not address the political issue of what protections Congress might decide to provide mortgage owners and servicers as a part of such legislation.
The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports
The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports
Journal Articles
In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.
Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer …
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Journal Articles
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …