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Union Salts As Administrative Private Attorneys General, Michael C. Duff Apr 2011

Union Salts As Administrative Private Attorneys General, Michael C. Duff

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The legitimacy of union salting campaigns has been debated frequently and bitterly over the last several years. Salts, the agents of these campaigns, are professional union organizers who apply for, and sometimes obtain – often surreptitiously – employment with non-union employers in furtherance of union objectives. Although recent decisions of the National Labor Relations Board (NLRB), under the influence of the W. Bush administration, have erected administrative and legal roadblocks to the conduct of salting campaigns, it is likely that the “Obama Board” will revisit the issues surrounding them. This article argues that salts have served a legitimate function by …


Implementing Health Reform At The State Level: Access And Care For Vulnerable Populations, John V. Jacobi, Sidney D. Watson, Robert Restuccia Apr 2011

Implementing Health Reform At The State Level: Access And Care For Vulnerable Populations, John V. Jacobi, Sidney D. Watson, Robert Restuccia

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The Affordable Care Act1 (ACA) promises to improve access to coverage and care for two vulnerable groups: low-income persons who are excluded by a lack of resources and chronically ill and disabled people who are excluded by the dysfunction of our existing insurance and care delivery systems. ACA’s sprawling provisions raise a wealth of implementation challenges that are exacerbated by the compromises required to move reform through Congress. In particular, the compromise between regulatory/public program advocates and advocates for private, market-driven programs requires thoughtful regulatory coordination between public and private health systems.

The anticipated increase in coverage is roughly …


Terms Matter: Reflections On The Wyoming Debate Over The Teachers’ “Union” And Teacher “Tenure”, Michael C. Duff Apr 2011

Terms Matter: Reflections On The Wyoming Debate Over The Teachers’ “Union” And Teacher “Tenure”, Michael C. Duff

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Invariably, in Wyoming, as in other states, the educational debate swirls around two topics: the extent to which school teachers’ unions influence educational policy, and the related, but distinct, question of whether teachers are unreasonably entrenched in their jobs through systems of “tenure.” These questions in turn are closely intertwined with the broader national debate over public employee unionism. In Wyoming, however, the broader debate is not at issue, a fact that will be revealed in this article through close scrutiny of the terms “union” and “tenure.”


The Affordable Care Act And Competition: Antidote Or Placebo?, Thomas L. Greaney Jan 2011

The Affordable Care Act And Competition: Antidote Or Placebo?, Thomas L. Greaney

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In the run-up to its enactment, the Patient Protection and Affordable Care Act (ACA) elicited howls of protest from opponents who claimed the federal government was, “taking over,” the American healthcare system, “micromanaging,” medicine, and generally exposing the nation to the bête noire of, “socialized medicine.” Hyperbole, misrepresentation and chauvinism aside, these sound bites suffer from a deeper flaw: They mischaracterize the fundamental thrust of the new law. Though the law establishes significant new regulatory authority, this is neither a new development (indeed it can be faulted for preserving pre-existing regulatory regimes) nor does it impair market competition. To the …


Helping Your Client Create And Grow A Successful Nonprofit Organization, Dana M. Malkus Jan 2011

Helping Your Client Create And Grow A Successful Nonprofit Organization, Dana M. Malkus

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This article provides Missouri attorneys with information and tools designed to enable them to offer pro bono legal assistance to start-up and established nonprofit organizations.


Cultural Understandings Of Risk And The Tyranny Of The Experts, Molly J. Walker Wilson Jan 2011

Cultural Understandings Of Risk And The Tyranny Of The Experts, Molly J. Walker Wilson

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Every year, law-makers and agency regulators, with the input of industry experts and scientists, make hundreds of decisions about how to regulate conduct and allocate resources to address various types of risks that threaten the well-being of American citizens. In fact, managing and minimizing risk is one of the most important tasks of today’s policy-makers. In spite of this fact, most actions are taken without systematic consideration of the preferences of the very people whose welfare is at stake. There are two reasons for this. First, the dominance of Traditional Risk Analysis, with its emphasis on statistics and cost-benefit analysis, …


Choosing Justices: How Presidents Decide, Joel K. Goldstein Jan 2011

Choosing Justices: How Presidents Decide, Joel K. Goldstein

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Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …


What's In A Name? - The Tale Of Louis Wolfson's Affirmed, Alan M. Weinberger Jan 2011

What's In A Name? - The Tale Of Louis Wolfson's Affirmed, Alan M. Weinberger

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Why would someone choose to name a thoroughbred racehorse "Affirmed" after his conviction for federal securities laws violations had been affirmed on appeal? This inquiry is the basis for exploring the enigmatic life and spectacular career of Louis E. Wolfson, owner and breeder of the last winner of horse racing's Triple Crown.

Perhaps best known as the central figure in the scandal that resulted in the forced resignation of Supreme Court Justice Abe Fortas, Wolfson left a sizable footprint on corporate legal history. He has been described as the original corporate raider, the inventor of the market for corporate control …


Understanding Exclusion Of The Cisg: A New Paradigm Of Determining Party Intent, William P. Johnson Jan 2011

Understanding Exclusion Of The Cisg: A New Paradigm Of Determining Party Intent, William P. Johnson

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The village market of old has become a global market today. The products we use or consume on a daily basis are produced all over the world. Asparagus grown in Peru, coffee beans harvested in Guatemala, shoes made in Italy, and Japanese automobiles are all readily available to consumers throughout the United States. Moreover, U.S. companies—even small U.S. companies—have their products manufactured in foreign jurisdictions where labor is cheap and the necessary raw materials are plentiful. And those U.S. companies who do manufacture their products in the United States nevertheless often obtain their parts, components, raw materials, and supplies from …


The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson Jan 2011

The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson

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This Article offers a view, from a U.S. perspective but for a non-U.S. readership, on the significant aspects of planning for dispute resolution in the context of cross-border business transactions involving U.S. and non-U.S. parties. Specifically, this Article identifies the issues that parties who are located in Brazil or in other jurisdictions throughout the Americas should consider at the time of drafting, negotiating, and finalizing business contracts with U.S. counterparties, as well as business contracts that are entered into in connection with other cross-border arrangements that could involve U.S. law even when there is no U.S. counterparty, to prepare for …


How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question Of Assistance To The Voter, Chad Flanders Jan 2011

How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question Of Assistance To The Voter, Chad Flanders

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The 2010 race for the Alaska Senate now seems to be over. After losing in the Republican Party Primary to Tea Party-backed candidate Joe Miller, Senator Lisa Murkowski staged a write-in candidacy and, bucking both U.S. and Alaska history, won the general election. Although much attention has been paid to Miller’s post-election challenges to Murkowski write-in ballots, a major election law question was at issue prior to the election: to what extent can poll workers assist voters who need help in voting for a write-in candidate?

After Murkowski declared her write-in candidacy, the Alaska Division of Elections distributed a list …


Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein Jan 2011

Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein

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Chief Justice Roberts has now completed five years of what is likely to be a lengthy tenure in the Court’s center seat. The quality of his institutional leadership, like that of his predecessors, resists confident contemporary assessment to a unique degree among principal offices of American government inasmuch as much of what a Chief Justice does is invisible to all but a relatively few observers, most or all of whom generally remain discreetly silent about such matters. Nonetheless, history counsels that the professional and interpersonal skill which a Chief Justice displays may substantially affect the Supreme Court and the quality …


Regulating To Promote Competition In Designing Health Insurance Exchanges, Thomas L. Greaney Jan 2011

Regulating To Promote Competition In Designing Health Insurance Exchanges, Thomas L. Greaney

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Many of the most contentious issues in the debate over health reform concerned the performance and competitiveness of private health insurance including abusive and unfair practices such as denying coverage to individuals with pre-existing conditions; the impact of dominant insurers serving individual and small group markets; and purportedly excessive profits of the insurance industry and lavish salaries of their executives. A key component of the Affordable Care Act for implementing and overseeing reforms directed at these problems is the establishment of market-making entities, health insurance exchanges. These state-run entities will certify insurers’ compliance with regulations, monitor their performance, and take …


Federal Regulation And The Problem Of Adjudication, Marcia L. Mccormick Jan 2011

Federal Regulation And The Problem Of Adjudication, Marcia L. Mccormick

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After decades of deregulation, the United States seems to be entering a period of re-regulation, regulation to prevent harm that many activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the crises of tomorrow, this …


Racial Inequities In Mortality And Access To Health Care: The Untold Peril Of Rationing Health Care In The United States, Ruqaiijah A. Yearby Jan 2011

Racial Inequities In Mortality And Access To Health Care: The Untold Peril Of Rationing Health Care In The United States, Ruqaiijah A. Yearby

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On February 25, 2007, a 12-year-old African American boy named Deamonte Driver died of a toothache because he did not receive a routine $80 tooth extraction that may have saved him, which was covered by his insurer: Medicaid. Unable to afford $80 or find a dentist that took Medicaid, Deamonte wound up in the emergency room, underwent two brain surgeries, and was in the hospital for six weeks of treatment, which cost approximately $250,000. In the end, Deamonte still died from a brain infection caused by the spread of the bacteria from the abscess in his mouth.

While Deamonte did …


Consensus, Dissensus, And Enforcement: Legal Protection Of Working Women From The Time Of The Triangle Shirtwaist Factory Fire To Today, Marcia L. Mccormick Jan 2011

Consensus, Dissensus, And Enforcement: Legal Protection Of Working Women From The Time Of The Triangle Shirtwaist Factory Fire To Today, Marcia L. Mccormick

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The Triangle Shirtwaist Factory tragedy mobilized the labor movement and progressive reformers, and provided part of the political will to enact significant protective health and safety legislation for workers. And while the Triangle Shirtwaist Factory fire has been cited in legal literature as an important event in the movement for workplace safety standards, however, the gendered nature of the tragedy and its place in the development of laws protecting women as women, rather than as beneficiaries of laws protecting all workers, has not been as fully explored. This contribution to the New York University Journal of Legislation and Public Policy's …


Imitation Or Improvement? The Evolution Of Shareholder Derivative Litigation In The United States, United Kingdom, Canada, And Australia, Ann M. Scarlett Jan 2011

Imitation Or Improvement? The Evolution Of Shareholder Derivative Litigation In The United States, United Kingdom, Canada, And Australia, Ann M. Scarlett

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Shareholder derivative litigation is a target of constant criticism within the United States (U.S.). Many scholars advocate for its abolition and others propose strict limitations on its use. If shareholder derivative litigation were universally disfavored, one would expect countries to be abandoning such litigation through legislative enactments or judicial rulings. Instead, many countries are expanding shareholder derivative litigation.

This Article compares the shareholder derivative action as developed in the U.S. with such actions in the United Kingdom, Canada, and Australia. The U.S. has the most recognized and frequent uses of shareholder derivative actions, whereas such actions are rare in the …


Mandatory Disclosure In The Market For Union Representation, Matthew T. Bodie Jan 2011

Mandatory Disclosure In The Market For Union Representation, Matthew T. Bodie

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For over sixty years, the National Labor Relations Board has followed the “laboratory conditions” doctrine in its regulation of representation elections. According to the doctrine, the Board must provide workers with an electoral “laboratory” in order to determine the “uninhibited desires” of the employees. Elections are vacated and conducted anew if the winning party violated the laboratory conditions. The laboratory conditions doctrine suggests an active and vigorous role for the Board in providing employees with the proper election environment. However, the Board’s regulation has largely focused on keeping out electoral impurities and has done little to make sure employees have …


The Uncorporation And The Unraveling Of 'Nexus Of Contracts' Theory, Grant M. Hayden, Matthew T. Bodie Jan 2011

The Uncorporation And The Unraveling Of 'Nexus Of Contracts' Theory, Grant M. Hayden, Matthew T. Bodie

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This is a review of The Rise of the Uncorporation, by Larry E. Ribstein (Oxford University Press 2010). The Rise of the Uncorporation gives a compelling account of the increasing reliance on business forms other than the corporation. These new organizational forms - such as limited liability companies, limited liability partnerships, partnerships, and the like - give businesses greater freedom to structure themselves in ways that best facilitate their particular needs. And this, according to Ribstein, is an unqualified good, for it allows firms to operate more efficiently than if they were forced to assume an intensely regulated form.

Like …


Employees And The Boundaries Of The Corporation, Matthew T. Bodie Jan 2011

Employees And The Boundaries Of The Corporation, Matthew T. Bodie

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Employees have no formal role in U.S. corporate law. According to most theories of the firm, however, employees play a critical role in differentiating firms from markets. This essay examines the disparity in treatment and seeks to understand the ramifications of the separation of employees from the corporation. After discussing the absence of employees from the corporate structure, the essay looks at the role of the employees in theories of the firm. In contrast to corporate law, these theories generally include employees within the core of the firm, and they often explain the nature and purpose of the firm in …


Nascar Green: The Problem Of Sustainability In Corporations And Corporate Law, Matthew T. Bodie Jan 2011

Nascar Green: The Problem Of Sustainability In Corporations And Corporate Law, Matthew T. Bodie

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The concept of "sustainability" is, at root, about a commitment to considering the future of the planet in our everyday affairs. In the corporate law context, supporters of sustainability seek to integrate these long-term environmental and social concerns into the corporation's DNA. This article seeks to explore sustainability as a corporate law concept by looking at the sustainability efforts of NASCAR and its affiliated firms. NASCAR has undertaken a series of "green" initiatives, most notably in the promotion of alternative fuels. These sustainability efforts are facilitated, in part, by the unusual structure of NASCAR and the sport of stock-car racing. …


Beyond The Tide: Beginning Admiralty With The Steamboat Magnolia, Joel K. Goldstein Jan 2011

Beyond The Tide: Beginning Admiralty With The Steamboat Magnolia, Joel K. Goldstein

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Admiralty is potentially one of the richest subjects in the law school curriculum. This claim may be received skeptically by those who have neither taught nor taken the course. Yet my experience as a student in, and teacher of, the course confirms my belief that Admiralty holds that promise, especially if it is presented not simply as a vehicle to train the relatively few who hope to become maritime lawyers, but as an opportunity for students with different aspirations to explore some of the most interesting issues in law. As a crosscutting course, Admiralty offers a chance to integrate materials …


Shotguns,Weddings, And Lunch Counters: Why Cultural Frames Matter To Constitutional Law, Anders Walker Jan 2011

Shotguns,Weddings, And Lunch Counters: Why Cultural Frames Matter To Constitutional Law, Anders Walker

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Though most constitutional scholars celebrate the civil rights movement, few have asked whether and to what extent the movement relates to current efforts of constitutional reform. Yet, the rise of direct action in the 1960s marked a bold realignment of the collective action, social movement frames of the civil rights struggle, a movement that has direct relevance to current constitutional battles, particularly over marriage and guns. As this Article will show, both the constitutional challenge to gun bans in Illinois and the constitutional challenge to California’s same-sex marriage ban have dealt with issues of frame alignment similar to those confronted …


The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker Jan 2011

The New Common Law Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker

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Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this …


Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo Jan 2011

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

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This piece is an invitation to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973 and the American with Disabilities Act of 1990 (ADA). Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced by people with disabilities, drawing upon my ongoing research …


Does It Matter What We Say About Legal Interpretation?, Karen Petroski Jan 2011

Does It Matter What We Say About Legal Interpretation?, Karen Petroski

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Despite a common interest in justifying their scholarly output, legal academics have resisted seeing how their work is molded by the institutional environment in which it is produced, and not just by legal doctrine, ideology, or individual perspectives. This paper presents a case study from this neglected perspective, considering the shape of scholarship on legal interpretation in light of the social conditions of its production. After a brief discussion of the debates over whether scholarship (and which scholarship) matters, the paper explores how such concerns are addressed in various academic accounts of scholars’ textual practices. It then offers some initial …


Of Courage, Tumult, And The Smash Mouth Truth, Michael C. Duff Jan 2011

Of Courage, Tumult, And The Smash Mouth Truth, Michael C. Duff

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In this paper I argue that no labor movement is possible until workers understand and accept the inevitability of labor-management conflict. I support my contention drawing broadly on history surrounding the New Deal and on my own experiences as a union organizer and labor lawyer.


Investors Beware: Assessing Shareholder Derivative Litigation In India And China, Ann M. Scarlett Jan 2011

Investors Beware: Assessing Shareholder Derivative Litigation In India And China, Ann M. Scarlett

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In response to the 2008 financial crisis, the United States government bailed out many business entities in exchange for equity and debt interests in such entities. It also dramatically increased the regulations imposed on businesses. This level of government ownership and intervention in corporations is rare in free-market capitalist systems such as the United States. Government ownership and control, however, are common among historically socialist countries such as India or communist countries such as China. Yet, the United States’ recent actions stand in stark contrast to the trend in India and China, which have both been moving toward more capitalist …


Missouri Provides Cost Of Sentences And Recidivism Data: What Does Cost Have To Do With Justice?, Michael A. Wolff Jan 2011

Missouri Provides Cost Of Sentences And Recidivism Data: What Does Cost Have To Do With Justice?, Michael A. Wolff

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The Missouri Sentencing Advisory Commission in 2010, which has an information-based sentencing information system, added two items of information to its Web-based Automated Sentencing Information feature: (1) the cost of each sentencing option and (2) the recidivism rate for offenders – with similar risk factors – who received sentences for the same offense or category of offenses. Because sentencing decisions in Missouri are discretionary, judges are free to use or to disregard the information. For many offenses, however, it is possible for an advocate to argue or for a judge (or the public) to conclude that a more harsh sentence …


Turkey's Accession To The Cisg: The Significance For Turkey And For Sales Transactions With U.S. Contracting Parties, William P. Johnson Jan 2011

Turkey's Accession To The Cisg: The Significance For Turkey And For Sales Transactions With U.S. Contracting Parties, William P. Johnson

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The United Nations Convention on Contracts for the International Sale of Goods (CISG) entered into force for Turkey on August 1, 2011. This article considers the significance of Turkey’s accession to the CISG as part of Turkey’s continuing engagement with systems of international trade, especially as relates to sales transactions with U.S. contracting parties. This article urges the Turkish bar to recognize that the CISG is a viable alternative to various potentially applicable bodies of domestic sales law, and the article offers some guidance regarding proper understanding and application of the CISG. This article also offers comparative analysis of some …