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Articles 1 - 11 of 11
Full-Text Articles in Law
The Freedom Of Health, Abigail R. Moncrieff
The Freedom Of Health, Abigail R. Moncrieff
Law Faculty Articles and Essays
This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the HlNl vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should …
The Positive Case For Centralization In Health Care Regulation: The Federalism Failures Of The Aca, Abigail R. Moncrieff, Eric Lee
The Positive Case For Centralization In Health Care Regulation: The Federalism Failures Of The Aca, Abigail R. Moncrieff, Eric Lee
Law Faculty Articles and Essays
Although the ACA accomplishes significantly greater centralization of authority for healthcare regulation, it falls far short of the full centralization that seems functionally justified. There is no doubt that the states have played an important role in healthcare regulation throughout the nation's history, but that role is becoming increasingly irrelevant as healthcare regulation becomes increasingly technocratic—i.e., increasingly objectivist and data-driven. The ACA is a step in the right direction, but the U.S. should further centralize authority over healthcare.
Organ Conscription: How The Dead Can Save The Living, David Schwark
Organ Conscription: How The Dead Can Save The Living, David Schwark
Journal of Law and Health
This Note will examine the failures of uncompensated and voluntary donation and argue that the only way to meet our country's organ needs is to make donation mandatory. Part II of this Note examines the history of voluntary organ donation in the United States. This history describes the evolution of organ donation laws from the first transplant until the present day. Part II also details the consequences and shortcomings of the current system. Part III examines three other proposed solutions to the organ deficit. These possible solutions include routine requests, an organ market, and presumed consent. However, none of these …
Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray
Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray
Law Faculty Articles and Essays
Three of the Constitutional Court's socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfill their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend - an aspect reflected in the Court's emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed …
Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight , Kenneth A. Klukowski
Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight , Kenneth A. Klukowski
Cleveland State Law Review
This Article begins in Part II by exploring a recent executive privilege case between the White House and Congress. Part III then explains the constitutional rationale for executive privilege by surveying the tension between Congress's Article I powers and the President's Article II powers. Part IV then explains modern executive privilege doctrine and the different forms of executive privilege, and also proposes a new multi-factor analysis to be incorporated into the current test. Part V moreover explains why the courts should reject both branches' arguments on these issues in favor of a third approach. Part VI then ends with the …
Municipal Predatory Lending Regulation In Ohio: The Disproportionate Impact Of Preemption In Ohio's Cities, Brett Altier
Municipal Predatory Lending Regulation In Ohio: The Disproportionate Impact Of Preemption In Ohio's Cities, Brett Altier
Cleveland State Law Review
Whether in the case of predatory lending or other issues that will differ from location to location, municipalities should continue to protect their cities by exercising their power under the Home Rule Amendment to enforce regulations not in direct conflict with Ohio law. Even though the Framers of the Home Rule Amendment intended to protect municipal power by ensuring that only those ordinances in actual conflict would be voided, Ohio courts have denied municipalities their Home Rule police power by applying a conflict by implication test, contributing to the housing crisis still plaguing Ohio's cities. While Ohio courts have made …
The Unconstitutionality Of Oklahoma's Sq 755 And Other Provisions Like It That Bar State Courts From Considering International Law, Penny M. Venetis
The Unconstitutionality Of Oklahoma's Sq 755 And Other Provisions Like It That Bar State Courts From Considering International Law, Penny M. Venetis
Cleveland State Law Review
This paper will discuss SQ 755's many legal deficiencies, focusing primarily on its constitutional infirmities. First, SQ 755 is a clear violation of the Supremacy Clause of Article VI of the U.S. Constitution. The prohibition on looking to international law requires that Oklahoma courts disregard U.S. treaty obligations, and the law of nations (also known as customary international law), which are all binding on American courts. Second, SQ 755 unconstitutionally limits a state's duty to give full faith and credit to the judicial decisions of other states. The law is clear that no state has the authority to condition its …
Taking Stare Decisis Seriously: A Cautionary Tale For A Progressive Supreme Court, James G. Wilson
Taking Stare Decisis Seriously: A Cautionary Tale For A Progressive Supreme Court, James G. Wilson
Law Faculty Articles and Essays
To better understand stare decisis and to normatively explore our constitutional future, this article assumes that President Obama's election signifies a constitutional shift similar to the one occurring after President Nixon won in 1968. From that contentious, self-righteous era to the present day, all American Presidents selected Supreme Court nominees who were more conservative than the members of the Warren Court majority, much less that aggressively liberal duo, Justices Brennan and Marshall. Justice Stevens, appointed by the moderate Republican President Gerald Ford, is arguably the most liberal member on the Court. It is impossible to predict how far the country …
Interrogation And The Roberts Court, Jonathan Witmer-Rich
Interrogation And The Roberts Court, Jonathan Witmer-Rich
Law Faculty Articles and Essays
Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not …
Demosprudence In Comparative Perspective, Brian E. Ray
Demosprudence In Comparative Perspective, Brian E. Ray
Law Faculty Articles and Essays
This article critically examines the debate over demosprudence. It adopts a comparative - specifically South African - perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive …
I Am Textualism , Stephen Durden
I Am Textualism , Stephen Durden
Cleveland State Law Review
Until every person seeking to interpret the Constitution recognizes that constitutional interpretation is a quintessentially human endeavor, based on human assumptions and human reasoning, I will remain to protect those who seek to hide their predilections, their personal choices. I will continue to change as time passes. My form will continue to change to meet the needs of those who seek my cloak of objectivity and seek to redefine and improve me. I am a human invention created to pretend that constitutional interpretation is not a human endeavor. I am what each disciple wants. I am what each disciple needs. …