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2013

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Full-Text Articles in Law

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld Jan 2013

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Faculty Scholarship

The anticipated growth of Medicaid under the ACA will likely aggravate an ongoing dispute surrounding private enforcement of the Medicaid Act. The Medicaid Act does not provide a private right of action except when a person who is eligible for Medicaid is denied entry into the program. Nevertheless, historically, both Medicaid providers and beneficiaries have been able to protect their rights through 42 U.S.C. § 1983, which allows individuals to seek redress against states in federal court for violations of statutory or constitutional rights, or through the Supremacy Clause, which prevents states from enacting laws that violate superseding federal laws. …


Measuring The Racial Unevenness Of Law School, Jonathan Feingold, Doug Souza Jan 2013

Measuring The Racial Unevenness Of Law School, Jonathan Feingold, Doug Souza

Faculty Scholarship

In "Measuring the Racial Unevenness of Law School," Jonathan Feingold and Doug Souza introduce and analyze the concept of racial unevenness, which refers to the particularized burdens an individual encounters as a result of her race. These burdens, which often arise because an individual falls outside of the racial norm, manifest across a spectrum. At one end lie obvious forms of overt and invidious racial discrimination. At the other end, racial unevenness arises from environmental factors and institutional culture independent from any identifiable perpetrator. As the authors detail, race-dependent burdens can arise in institutions and communities that expressly promote racial …


Make The Patent “Polluters” Pay: Using Pigovian Fees To Curb Patent Abuse, James Bessen, Brian Love Jan 2013

Make The Patent “Polluters” Pay: Using Pigovian Fees To Curb Patent Abuse, James Bessen, Brian Love

Faculty Scholarship

On the heels of a widely reported uptick in egregious patent enforcement, six patent reform bills have been introduced in the last six months. All six bills aim to curb nuisance-value patent litigation, a phenomenon popularly referred to as “patent trolling,” by reducing the cost of defending these suits. In this essay, we argue that these bills, while admirable, treat the symptoms of our patent system’s ills, rather than the disease itself: a growing glut of unused high-tech patents that have little practical value apart from use as vehicles for nuisance-value litigation. Accordingly, we urge Congress to consider one additional …


Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld Jan 2013

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.


Did Legal Education Fail Health Reform? And How Health Law Can Help, Wendy K. Mariner Jan 2013

Did Legal Education Fail Health Reform? And How Health Law Can Help, Wendy K. Mariner

Faculty Scholarship

Arguments over the constitutionality of the Affordable Care Act illustrate the pervasiveness of health law issues in society. In court, arguments on both sides also demonstrated insufficient knowledge of the health care system and health insurance to identify and present useful arguments. Too many lawyers remained wedded to theories of constitutional law that have become disconnected from twenty-first century realities. Legal education may have something to answer for in this respect. This essay examines how legal education in health law may offer some valuable responses to ongoing critiques of legal education in general. The more law moves away from strict …


The Arab-Israeli Conflict And International Law, Susan M. Akram, S. Michael Lynk Jan 2013

The Arab-Israeli Conflict And International Law, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The Arab-Israeli conflict has become the most prominent arena of regional and international tension over the past century. Within the realm of international law, the conflict has contributed greatly to the development of international rule-making. The laws of war, the scope of international humanitarian and human rights law, the rights of refugees, the centrality of self-determination, the laws on terrorism and the content of modern treaty-making -- all have been significantly shaped by the norms established through the copious resolutions, diplomatic statements and legal commentary on the many features of the conflict. Yet, at the same time, the efficacy of …


Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston Jan 2013

Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston

All Faculty Publications

This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …


Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui Jan 2013

Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui

All Faculty Publications

The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature's intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial troubles, …


Access To Justice For All: Towards An 'Expansive Vision' Of Justice And Technology, Jane Bailey, Jacquelyn Burkell, Graham Reynolds Jan 2013

Access To Justice For All: Towards An 'Expansive Vision' Of Justice And Technology, Jane Bailey, Jacquelyn Burkell, Graham Reynolds

All Faculty Publications

The Canadian dialogue regarding access to justice has taken an important turn in the last few years, more robustly conceptualizing what is to be accessed (“deliverables”) and who is intended to benefit (“beneficiaries”), as well as recognizing that access to justice initiatives that benefit some citizens or groups of citizens cannot be presumed to benefit all citizens. Recent initiatives shift focus away from particular kinds of deliverables (e.g. access to lawyers and courts) and/or particular groups of beneficiaries (e.g. the middle class) toward a more “expansive vision” of access to justice. The expansive vision not only integrates and prioritizes a …


Why Gridlock Matters, Michael J. Gerhardt Jan 2013

Why Gridlock Matters, Michael J. Gerhardt

Faculty Publications

No abstract provided.


On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt Jan 2013

On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Juries For Juveniles, Joseph E. Kennedy Jan 2013

Juries For Juveniles, Joseph E. Kennedy

Faculty Publications

No abstract provided.


Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim Jan 2013

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Faculty Publications

No abstract provided.


Beyond Our Hearts: The Ecology Of Couple Relationships, Holning S. Lau Jan 2013

Beyond Our Hearts: The Ecology Of Couple Relationships, Holning S. Lau

Faculty Publications

No abstract provided.


Abstention, Separation Of Powers, And Recasting The Meaning Of Judicial Restraint, William P. Marshall Jan 2013

Abstention, Separation Of Powers, And Recasting The Meaning Of Judicial Restraint, William P. Marshall

Faculty Publications

No abstract provided.


The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall Jan 2013

The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall

Faculty Publications

No abstract provided.


Potential Innocence: Making The Most Of A Bleak Environment For Public Support Of Indigent Defense, Robert P. Mosteller Jan 2013

Potential Innocence: Making The Most Of A Bleak Environment For Public Support Of Indigent Defense, Robert P. Mosteller

Faculty Publications

No abstract provided.


Sovereign Debt After Nml V. Argentina, W. M. C. Weidemaier Jan 2013

Sovereign Debt After Nml V. Argentina, W. M. C. Weidemaier

Faculty Publications

No abstract provided.


Alappat Redux: Support For Functional Language In Software Patent Claims, Andrew Chin Jan 2013

Alappat Redux: Support For Functional Language In Software Patent Claims, Andrew Chin

Faculty Publications

The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate structural support for a means-plus-function element in a software patent claim under § 112(f). A recent proposal by Mark Lemley fully endorses this proposition and seeks its broader application. The concept of an algorithm, however, is too slippery to serve as the basis for such a rule. In this Article, I argue that this overreliance on the algorithm concept originated in a revisionist gloss on the Federal Circuit's 1994 Alappat decision. Informed by a closer reading of what Alappat actually has to say about …


Freedom Of Speech, Defamation, And Injunctions, David S. Ardia Jan 2013

Freedom Of Speech, Defamation, And Injunctions, David S. Ardia

Faculty Publications

No abstract provided.


Trends In The Social [Ir]Responsibility Of American Multinational Corporations: Increased Power, Diminished Accountability, Cynthia A. Williams, John M. Conley Jan 2013

Trends In The Social [Ir]Responsibility Of American Multinational Corporations: Increased Power, Diminished Accountability, Cynthia A. Williams, John M. Conley

Faculty Publications

No abstract provided.


The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter J. Katzenstein Jan 2013

The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter J. Katzenstein

All Faculty Publications

This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures …


Book Review: Theory And Practice Of Harmonisation, Mads Andenæs & Camilla B. Andersen (Eds), Toby S. Goldbach Jan 2013

Book Review: Theory And Practice Of Harmonisation, Mads Andenæs & Camilla B. Andersen (Eds), Toby S. Goldbach

All Faculty Publications

"Theory and Practice of Harmonisation" is an edited symposium publication which tackles the ambitious topic of legal harmonisation. Some common themes can be identified. First, several papers deal with the background to or reasons for harmonisation and consider whether harmonisation goals are being met.Second, several papers examine language-textual issues or problems with defining concepts. A third centralizing theme is the role of legal institutions, in particular courts, in facilitating harmonisation. Finally, a fourth theme is evident in those papers that look at the instruments, mechanisms or legal techniques that are used to implement harmonisation. As a whole, the text seems …


The Next Stage Of Csr For Canada: Transformational Corporate Governance, Hybrid Legal Structures, And The Growth Of Social Enterprise, Carol Liao Jan 2013

The Next Stage Of Csr For Canada: Transformational Corporate Governance, Hybrid Legal Structures, And The Growth Of Social Enterprise, Carol Liao

All Faculty Publications

The period when corporate social responsibility (CSR) only referred to corporate philanthropic donations has passed. Present day CSR is intimately intertwined with sustainable development, and its growth in the last several decades has been evident in Canada. The recent appearance of “hybrid” corporate legal structures on the international stage marks a growing trend toward enabling the dual pursuit of economic and social mandates for businesses. It suggests that the next significant stage in the CSR movement will be in the reformation and creation of corporate legal models that not only enable, but require, CSR concepts to be embodied within corporate …


Critical Race Empiricism: A New Means To Measure Civil Procedure, Victor D. Quintanilla Jan 2013

Critical Race Empiricism: A New Means To Measure Civil Procedure, Victor D. Quintanilla

Articles by Maurer Faculty

This article reflects the second phase in a research line examining the effects of highly subjective pleading rules, specifically, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and was an invited contribution to a symposium, which explored the intersection of empirical legal methods and critical race theory. In this phase, I updated the empirical legal analysis in a prior article, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination, 17 Michigan Journal of Race and Law 1 (2011), in three ways. First, I lengthened the time horizon from 18 months to 24 months, increasing the …


Against Neorehabilitation, Jessica M. Eaglin Jan 2013

Against Neorehabilitation, Jessica M. Eaglin

Articles by Maurer Faculty

In the face of severe budget constraints, bipartisan calls for reform, dropping crime rates, and judicial intervention, states are seriously considering and implementing criminal justice reform to manage prison populations for the first time in three decades. Scholars agree that states need a guiding theory to transform emergency and short-term reforms into a long-term shift in policy and practice away from mass incarceration. Numerous scholars advocate for a return to an improved theory of rehabilitation to guide the states in implementing such reform. This return-through neorehabilitation, or the rehabilitation of rehabilitation-centers on the use of evidence-based programming and predictive tools …


Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave Jan 2013

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …


The Skeptic’S Guide To Information Sharing At Sentencing, Ryan W. Scott Jan 2013

The Skeptic’S Guide To Information Sharing At Sentencing, Ryan W. Scott

Articles by Maurer Faculty

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law. This Article takes a skeptical view of the information sharing model, arguing that it suffers from …


La Citoyenneté Aux Etats-Unis : Une Valeur En Perpétuel Devenir, Elisabeth Zoller Jan 2013

La Citoyenneté Aux Etats-Unis : Une Valeur En Perpétuel Devenir, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


Promises To Keep: Ensuring The Payment Of Americans' Pension Benefits In The Wake Of The Great Recession, Kenneth G. Dau-Schmidt Jan 2013

Promises To Keep: Ensuring The Payment Of Americans' Pension Benefits In The Wake Of The Great Recession, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

In this essay, I examine the problem of designing a pension plan within the context of our larger public policy of encouraging workers to save for retirement. I discuss the various problems and risks inherent in encouraging workers to adequately save for retirement, invest those assets efficiently, and ensure the planned level of retirement consumption for the remainder of their lives. I also discuss the three major types of pension plans in the American retirement system, defined benefit, defined contribution, and hybrid, and assess how well each of these types of plans deals with the problems encountered in designing a …