Law Commons^™

Let Fifty Flowers Bloom: Health Care Federalism After National Federation Of Independent Business V. Sebelius, Ann Marie Marciarille

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Conventional wisdom is that the American public does not want to think too long or too hard about Medicaid. Medicaid’s reputation has long been big, complicated, and widely misunderstood. The 2012 presidential election campaign has been much about Medicaid, but Medicaid is a subject we love to talk around. Yet, our next president will be compelled to think and speak explicitly and fluently about Medicaid because Medicaid is the budget-buster of government funded health insurance. Its budget busting propensities are most pronounced at the intersection of Medicaid and the government-funded health insurance program we do love to discuss: Medicare.

This …

Executive Compensation: In Culture Of Greed And Selfishness, Is There Room For Theory Of "Enough", Robert C. Downs

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No abstract provided.

'How's My Doctoring?' Patient Feedback's Role In Assessing Physician Quality, Ann Marie Marciarille

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A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.

The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …

The Right To Silence In The Hague International Criminal Courts, Mark Berger

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The War Crimes Tribunals and the International Criminal Court were established as international judicial institutions charged with the task of prosecuting individuals responsible for committing such human rights offenses as genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and violations of the laws or customs of war. These judicial bodies function in much the same way as domestic criminal courts and as such they have had to balance the institutional goal of prosecuting human rights offenders with the need to respect appropriate limits on the exercise of their authority. This article explores how that balance has been …

The Challenge Of Optimism And Complexity: Inadequately Addressed By The Fcic's Report, Timothy E. Lynch

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No abstract provided.

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

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In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …

Posner’S Pragmatism And The Turn Toward Fidelity, Edward Cantu

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It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. This article discusses the current state of legal pragmatism, with a focus on the archetypal species espoused by Judge Richard Posner, and asks whether it has proven itself capable of contributing anything …

Maximizing Health Care Enrollment Through Seamless Coverage For Families In Transition: Current Trends And Policy Implications, Ann Marie Marciarille, Ken Jacobs, Laurel Lucia, Ann O’Leary

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The Affordable Care Act (ACA) builds on the employment-based health insurance system which is the bedrock of health insurance coverage for most Americans. When these Americans experience a change in their work or family lives, they are at risk for losing their job-based health insurance coverage. The health insurance exchanges established by the ACA provide an unprecedented opportunity to address one of the major sources of gaps in health insurance coverage: transitions in life that result in the loss of health insurance. The uninsured population is not static. Many people who are uninsured cycle in and out of coverage over …

Will Grassroots Democracy Solve The Government Fiscal Crisis?, Julie M. Cheslik

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No abstract provided.

Still Disconnected: Current Failures Of Statutory Approaches To Bullying Prevention In Schools, Daniel B. Weddle

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No abstract provided.

Reforming Immigration Law To Allow More Foreign Student Entrepreneurs To Launch Job Creating Ventures In The United States, Anthony J. Luppino, John Norton, Malika Simmons

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This paper outlines some of the barriers that foreign student entrepreneurs face, and describes how a somewhat expanded version of bipartisan legislation along the lines of the Startup Act 2.0 (S. 3217 or the Startup Act), cosponsored by Senators Jerry Moran (R-KS), Mark Warner (D-VA), Marco Rubio (R-FL), Chris Coons (D-DE), Roy Blunt (R-MO), and Scott Brown (R-MA), would help to address some of these roadblocks. The Startup Act, which has also been introduced in the House of Representatives on a bipartisan basis, as discussed below, would create a new conditional permanent resident status opportunity for foreign students who hold …

Do Police Learn From Lawsuit Data?, Randall K. Johnson

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A compelling new theory argues that lawsuit data collection has a deterrent effect on police misconduct. If this theory is correct, why has the number of police misconduct cases still increased over time? Does the trend continue if police departments consistently gather lawsuit data? A § 1983 dataset, which is introduced in this paper, provides an answer. This dataset shows that lawsuit data collection does not correlate with better deterrence of § 1983 cases. The dataset therefore indicates that police departments may not learn from lawsuit data.

Lessons Learned About Classroom Teaching From Authoring Computer-Assisted Instruction Lessons, Barbara Glesner Fines

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No abstract provided.

Adopting Accountable Care Through The Medicare Framework, Barbara Zabawa, Louise G. Trubek, Felice Borisey-Rudin

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The Patient Protection and Affordable Care Act of 2010 (PPACA) attempts to provoke change in the status quo in American health care delivery and payment. PPACA created two programs, the Medicare Shared Savings Program (MSSP) and the Pioneer ACO model, which work to bring the concept of Accountable Care Organizations (ACOs) to the Medicare program. At its core, accountable care matches payment for care with performance-based measures, a bold move away from current volume-based models. The paper makes the case that the Medicare-based programs serve as a suitable launch pad for the accountable care movement. The paper explores the emergence …

A License To Grow: Ending State, Local, And Some Federal Barriers To Innovation And Growth In Key Sectors Of The U.S. Economy, Brian J. Broughman, Brink Lindsey, Anthony J. Luppino, Karl S. Okamoto, Mark C. Suchman, Robert E. Litan, Larry E. Ribstein

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This white paper outlines some of the remaining state barriers and a few federal ones and how they prevent disruptive innovations by entrepreneurs and established firms alike that potentially could bring new and more efficient business models to the market. In the case of the legal sector, the barriers we identify not only adversely affect legal innovation, but also impede innovation in other sectors of the economy. Similarly, in health care, pharmaceuticals, K-12 education, the financing of growth businesses, and many consumer services, legal obstructions hinder innovation and the provision of efficient, affordable, high-quality services and products. We conclude by …

Fifty Years Of Family Law Practice The Evolving Role Of The Family Law Attorney, Barbara Glesner Fines

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No abstract provided.

Justice Breyer's Triumph In The Third Battle Over The Second Amendment, Allen K. Rostron

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In recent years, the Supreme Court has issued two landmark decisions about the constitutional right to keep and bear arms. District of Columbia v. Heller rejected the notion that the Second Amendment protects only organized militia activities, and McDonald v. City of Chicago found that the right to keep and bear arms applies to state and local governments via incorporation into the Fourteenth Amendment. Those decisions left important questions unanswered. In particular, the Supreme Court declined to specify what level of scrutiny or test should be used to assess the validity of gun laws. Lower courts are now wrestling with …

Factoids, Allen K. Rostron

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What exactly is the difference between a factoid and a fact? Norman Mailer intended the word "factoid" in a biography of Marilyn Monroe, using it to mean things that seem to be facts but really are not. But CNN Headline News and most writers eventually began using the word to mean a nugget of information that is true but trivial or presented without adequate context. To avoid confusion, I suggest that the term "pseudo-fact" is a great candidate to take over the role that Mailer intended for "factoid".

The Nutty Putty Cave, The Zen Runner And Other Allegories About Life, Death, Value And Law, John W. Ragsdale Jr

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No abstract provided.

A Law Clinic Systems Theory And The Pedagogy Of Interaction: Creating Legal Learning System, Patrick C. Brayer

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This article introduces a clinical systems approach that reframes professional experience as an interaction with a professional environment. The article encourages clinical faculty and other legal educators to contemplate the pedagogy of systemic interaction when teaching from experience and to then expand professional interactive opportunities within the short period of student participation. Clinical systems theory operates on the premise that students should reframe how they look at their surroundings so that the challenges that make up their professional system are not seen as problems but as means to a solution. Reframing by the student is realized in a clinical system …

The Law And Order Theme In Political And Popular Culture, Allen K. Rostron

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"Law and Order" became a political rallying cry in the 1960s, as conservative candidates like Barry Goldwater, George Wallace, and Richard Nixon criticized courts for putting the constitutional rights of criminals ahead of the need for effective police work and public safety. As the nation’s president after his victory in the 1968 presidential race, Nixon continued to emphasize the law and order theme. Meanwhile, a series of Westerns and cop movies, such as John Wayne’s "True Grit" and Clint Eastwood’s "Dirty Harry," began to echo Nixon’s claims about criminals, courts, and law. Concerns about crime and the impotency of the …

Children's Interests: An Annotated Bibliography, 2010-12, Nancy Levit

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This bibliography covers law review articles published, for the most part, after 2008. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.

Bending The Health Cost Curve: The Promise And Peril Of The Independent Payment Advisory Board, Ann Marie Marciarille

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Underlying today's and the future's health care reform debate is a consensus that America's health care financing system is in a slow-moving but deep crisis: care appears substandard in comparison with other advanced industrial countries, and relative costs are exploding beyond all reasonable measures. The Obama Administrations' Patient Protection and Affordable Care Act (ACA) attempts to grapple with both of these problems. One of the ACA's key instrumentalities is the Independent Payment Advisory Board - the IPAB, designed to discover and authorize ways to reduce the rate of growth of Medicare and other categories of health spending. The IPAB is …

Insurance And Cultural Perspectives On Katrina, Jeffrey E. Thomas

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No abstract provided.

You Can't Go Holmes Again, Lumen N. Mulligan

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Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer …

Consequences Of An Insurer's Breach Of The Duty To Defend: Columbia Casualty Co. V. Hiar Holdings, Llc In The Context Of The Ali Restatement Of The Law Of Liability Insurance, Jeffrey E. Thomas

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An insurer's duty to defend in connection with liability insurance policies is well-established and reasonably well understood. The consequences for the breach of that duty, however, are much less clear. On one hand, one might argue that this duty is a contractual duty giving rise to contractual remedies. The insured provides its own defense and, if the insurer wrongfully failed to provide a defense, the insured is entitled to reimbursement of its defense costs. On the other hand, this remedy seems insufficient; the value on an insurer's participation in the defense of a case goes beyond well merely paying the …

Changing Workforce Demographics And The Future Of The Protected Class Approach, Nancy Levit

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The composition and identity characteristics of the American workforce are changing. The population in this country is rising, aging, and becoming much more racially and ethnically diverse. Appearance norms are shifting too. These changes have enormous implications for constitutional and employment discrimination law. In both equal protection and employment discrimination cases, recovery usually depends on membership in a constitutionally or statutorily protected category. Yet the statutory approach to anti-discrimination law has stagnated. Part of the difficulty of the protected class approach is that it is based on something of a paradox — the paradox of exceptionalism. Class-based protection requires individuals …

Marital Property Annotated Bibliography, Nancy Levit

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This bibliography covers law review articles published, for the most part, after 2007. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.

The Department Of Justice Chases Mice While Lions Roam The Campsite: Why The Department Has Failed To Prosecute The Elite Frauds That Drove The Financial Crisis, William K. Black

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No abstract provided.

Retirement Assets To A Surviving Spouse – Rollovers And Portability Are Your First Choice, Christopher R. Hoyt

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This article examines the pros and cons of naming either a spouse or a trust for a spouse as the beneficiary of a retirement account. It integrates income tax planning with estate planning and recommends arrangements that will produce the best overall outcome.

Rollovers can pose challenges. For couples in a second marriage, there is no way to assure that the surviving spouse will leave any remaining rollover assets to the children of the deceased spouse’s prior marriage. An estate tax problem is that the rollover assets could inflate the size of the surviving spouse’s taxable estate. Thus, estate planners …