Law Commons^™

The Supreme Court's Limitation Of Managed-Care Liability, Wendy K. Mariner

Faculty Scholarship

This article summarizes and critiques the U.S. Supreme Court's decision in Aetna Health Inc. v. Davila, which limited managed care organizations' liability for negligent decisions about the care of patients in private employer-sponsored health plans governed by ERISA. It contrasts the Court's dichotomous view of health benefit plans, in which insurers administer contracts and treating physicians make medical judgments, with the more complicated relationships that affect decisions about both coverage and treatment.

Race And Equality Across The Law School Curriculum: The Law Of Tax Exemption, David A. Brennen

Scholarly Works

What is the relevance of race to tax law? The race issues are apparent when one studies a subject like constitutional law. The Constitution concerns itself explicitly with such matters as defining rights of citizenship, allocating powers of government, and determining rights with respect to property. Given the history of our country -- with slavery followed by periods of de jure and de facto racial discrimination -- these constitutional law matters obviously must have racial dimensions.

Tax law, however, does not generally concern itself explicitly with matters of race. Tax law is often thought of as completely race neutral in …

"May It Please The Camera,...I Mean The Court"--An Intrajudicial Solution To An Extrajudicial Problem, Lonnie T. Brown

Scholarly Works

This Article explores the depths of the ethical issues presented when lawyers zealously advocate on behalf of their clients to the media, as well as the negative public policy ramifications that such behavior generates. The latter effect most seriously signals the need for reform in this area. Part II of the Article provides insight into the principal source of the problem--the ineffectiveness of the existing regulatory devices. This section traces the evolution of the ethical rules that pertain to public commentary by lawyers from the early days of steadfast condemnation to the modern appraoch of cautious equivocation. It also considers …

Volume 21, No. 1

The Weldon Times

A student-run newspaper published at the School of Law at Dalhousie University.

Editor in Chief: Shawn Tock

News Editors: Jonathan Krashinsky, Michael Schalke

Layout Editor: Nate Russell

Debiasing Through Law, Cass R. Sunstein, Christine Jolls

Coase-Sandor Institute for Law & Economics Research Paper Series

Human beings are often boundedly rational. In the face of bounded rationality, the legal system might attempt either to "debias law," by insulating legal outcomes from the effects of boundedly rational behavior, or instead to "debias through law," by steering legal actors in more rational directions. Legal analysts have focused most heavily on insulating outcomes from the effects of bounded rationality. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in debiasing through law – to help people reduce or even eliminate boundedly rational behavior. In important contexts, these efforts promise to avoid …

Models Of Electoral System Change, Kenneth Benoit

Research Collection School of Social Sciences

Electoral systems are commonly treated as exogenous determinants of political party systems, yet our theoretical understanding remains limited as to how these institutions themselves are determined. Part of the problem lies with the subject matter itself: electoral system change is frequently idiosyncratic, often occurring during episodes of exceptional political change. Yet another aspect of the problem is that explanations of electoral system change frequently occur piecemeal in application to specific cases, without systematic or comparative development. Addressing both problems, I first survey the existing literature to develop a comprehensive typology of explanations of electoral system change and persistence. I then …

Treaties, Time Limits And Treasure Trove: The Legal Protection Of Cultural Objects In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This article considers the extent to which civil and criminal law in Singapore deters the unlawful removal of cultural objects from the possession of private owners, art galleries and museums, or from archaeological sites, and provides redress to victims. Given Singapore's position as the crossroads of Asia, the law must be able to cope with the flow of objects in and out of the country. The law is currently deficient as it is not tailored to deal with issues concerning cultural heritage, and needs to be reformed in several respects. There are sound reasons for a modern State like Singapore …

Sept. 2004, Cao, Comparative Matrix Of Accountability Mechanisms, Cao

CAO General 1999-Present

No abstract provided.

The Sympathetic Discriminator: Mental Illness And The Ada, Elizabeth Emens

Public Law and Legal Theory Working Papers

Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional …

Letter From David B. Heard To Abp. Michael J. Sheehan, Hall & Monagle, Llc

Records related to Judge Anna Martinez

No abstract provided.

Water Conservation Plan, Rocky Boy / North Central Montana Regional Water System (2004), Hkm Engineering

Native American Water Rights Settlement Project

Tribal Water Code: Water Conservation Plan, Rocky Boy / North Central Montana Regional Water System (Sep. 2004). Parties: Chippewa-Cree Tribe and NCM-RWS. The Rocky Boy/North Central Montana Regional Water System Act of 2002 (Pub. L. 107-331) authorized construction of the Rocky Boy/North Central Montana Regional Water System in north-central Montana. To meet the requirements of the Act, the Chippewa Cree Tribe and the North Central Montana Regional Water Authority developed and submitted a water conservation plan to Reclamation. The purpose of this water conservation plan is to ensure that users of water from the core system, non-core system and the …

Introduction, Brett G. Scharffs

BYU Law Review

No abstract provided.

Reconstituting The Law Of The Workplace In An Era Of Self-Regulation, Cynthia L. Estlund

ExpressO

As the reach of collective bargaining has shrunk in recent decades, the domain of employment law – of judicially-enforceable individual rights and administratively-enforced regulatory standards – has expanded. Both branches of employment law have seen the rise of employer “self-regulation” – internal systems for enforcement of rights and regulatory standards – and of legal inducements to self-regulation in the form of reduced public oversight or sanctions. In the shift from “self-governance” to “self-regulation,” employees have lost their institutional voices and are losing the protective oversight of courts and public agencies. In this article Professor Estlund looks for ways not to …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Ken Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Fundamentals Of Community Health Centers, Jessamyn Taylor

National Health Policy Forum

This background paper examines the dominant model of federal grant funding for primary care in the health care safety net: the community health center. It describes the history of the health center program and highlights key policy issues influencing health centers, such as Medicaid payment policies and medically underserved area designations. The paper also examines the recent presidential initiative to expand health centers, including a review of the process used to identify new grantees, an assessment of remaining gaps in capacity, an exploration of continuing challenges, and a discussion of unresolved policy questions.

A Report From The Forum Session "Implementing The New Medicare Drug Benefit: Challenges And Opportunities For States", Judith D. Moore

National Health Policy Forum

The National Health Policy Forum convened a meeting on July 22, 2004 to discuss state-based challenges associated with implementing the Medicare Prescription Drug, Improvement, and Modernization Act (MMA). The meeting brought together an extremely insightful and experienced group of current and former state officials and other experts to discuss key issues. In keeping with its tradition of promoting a frank, off-the-record exchange on health policy issues, NHPF does not normally prepare written summaries or reports of meetings. However, because this meeting provided vivid illustrations of the importance of state-federal collaboration for the successful implementation of the new Medicare drug benefit, …

Flouting The Law, Janice Nadler

ExpressO

What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust …

Vol. 27, No. 01 (August 30, 2004)

Indiana Law Annotated

No abstract provided.

Wanda Sharp V. Mississippi Band Of Choctaw Indians, Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

Future-Priced Convertible Securities & The Outlook For "Death-Spiral" Securities-Fraud Litigation, Zachary T. Knepper

ExpressO

No abstract provided.

Causation And Attenuation In The Slavery Reparations Debate, Kaimipono D. Wenger

ExpressO

Recent discussions of reparations have noted the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery.

This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and …

Toward A Small Donor Democracy: The Past And Future Of Incentive Programs For Small Political Contributions, Thomas J. Cmar

ExpressO

Political contribution incentive programs are a promising, under-explored means to address the problem of political equality in the American system of campaign finance. If properly designed, these programs -- which include tax credits, refunds, and vouchers -- could allow all Americans to participate on an equal basis in the crucial early-stage decisions that determine which candidates decide to run and are able to compete effectively. This article, written on behalf of U.S. PIRG, proposes a tax credit for political contributions as a first step toward building a "small donor democracy."

Vol 55, No. 2, August 27, 2004, University Of Michigan Law School

Res Gestae

•Dean Precht Leaving M-Law: Reflections on Public Service •Course Schedules Could Use Greater Student Input •Caminker Provides Preview of New Year •A Look into the Past, Present and Future with Professor Whitman •On Campus Interviewing Tips from Those in the Know •Blue Football: Optimism with Cause •Ain't No Cure for the Summertime Blues When You're Crippled and Cite-Checking •The OCI Drinking Game! •Crossword

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

ExpressO

This paper is about an unusual child custody dispute between the parents of a six-year-old child and the child welfare services of Franklin County, Ohio. The conflict emerged when the child’s parents complied with their male child’s professed desire to be treated as a girl by attempting to enroll the child in the first grade as a girl. The paper treats this case as an exemplary test-case of contemporary co-dependence between scientific-medical discourse and liberal-rights discourse. The paper analyzes the positions of the two sides of the custody dispute according to the classic modern distinction between mind and body. On …

A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs

ExpressO

Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …

Fundamentals Of The Prescription Drug Market, Christie Provost Peters

National Health Policy Forum

This background paper is a primer on the prescription drug market. It provides information on the fundamentals of the pharmaceutical industry and various marketplace stakeholders, including manufacturers, retailers, consumers, regulators, researchers, and purchasers. This paper also examines the various ways the federal government interacts with the pharmaceutical market. Due to the breadth of material addressed, some complex issues and relationships are presented in broad conceptual terms without extensive technical detail.

Tick-Tock: Preparing For The Next Influenza Pandemic, Eileen Salinsky

National Health Policy Forum

This paper describes the nature of pandemic influenza and highlights key challenges for responding to this disease threat. It explains how an influenza pandemic would differ from annual influenza outbreaks and examines how a pandemic virus could emerge. It also explores important issues involved in pandemic preparedness capabilities, including disease surveillance, vaccine production and distribution, antiviral stockpiling, health care system readiness, and public health containment measures. The national pandemic preparedness plan is briefly reviewed, and unresolved policy issues related to the plan’s implementation are identified.

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

Human Rights And Rule Of Law: What's The Relationship?, Randall P. Peerenboom

ExpressO

No abstract provided.