Law Commons^™

Certificate Of Need In The Post-Affordable Care Act Era, Emily Whelan Parento

Kentucky Law Journal

Certifcate of need ("CON") programs were conceived approximately fifty years ago as supply constraint mechanisms for healthcare services, in an environment that is essentially unrecognizable today. Every aspect of the healthcare landscape has changed dramatically, particularly in the years since the enactment of the Affordable Care Act. The historical rationales in support of CON programs have been vigorously questioned by scholars across disciplines, roundly criticized by the federal government, and largely disproven by research. Yet the status quo persists with thirty-five states retaining CON laws, due in large part to a combination of entrenched interests and polrical inertia that prevents …

Removing Recalcitrant County Clerks In Kentucky, Shawn D. Chapman

Kentucky Law Journal

Events in 2015 surrounding Rowan County Clerk Kim Davis showed how removing county clerks from office is not a simple task in Kentucky. At present, removal can be accomplished only by the same dfficult means required to remove a state-wide executive offlcer, meaning the county clerk has the same tenure as the governor and attorney general. Historically, however, the county clerk was removable by other, lesser means, as were all other county officers. Today, the other county offcers are still removable by those lesser means, but the county clerk is not, resulting in a removal gap. That gap first appeared …

Improving Protections For Whistleblowers: Why Congressional And Agency Intent Helped Provide The Second Circuit With The Correct Answer Of Encouraging Reporting Of Securities Violations, Alison M. Zeitlin

Kentucky Law Journal

No abstract provided.

Bringing In The Sheaves: Combating Televangelists' Abuse Of The Internal Revenue Code, Cody S. Barnett

Kentucky Law Journal

No abstract provided.

What The Polls Produce: Why Kentucky Should Retain Nonpartisan Elective Selection Of Its Supreme Court Justices, Nolan M. Jackson

Kentucky Law Journal

No abstract provided.

Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly

Kentucky Law Journal

Why do some struggling cities file for bankruptcy while others, facing simiar circumstances, do not? This Article builds on the literature examining the causes and consequences ofmunicipal fiscal distress by exploring specific factors that lead municipalities to seek help from the state and federal government. Viewing municipal opportunities and constraints through political, economic, and legal lenses, this Article helps to explain the nuances ofmunicival decision making.

After identifiing eight factors that may serve as predctors of municipal insolvency, the authors studied cities in Fiscal distress with an eye toward uncovering the circumstances that led each of these cities into and—if …

Legalzoom And Online Legal Service Providers: Is The Development And Sale Of Interactive Questionnaires That Generate Legal Documents The Unauthorized Practice Of Law?, Emily Mcclure

Kentucky Law Journal

No abstract provided.

Multiple Claims, Limited Funds, And Conflicting Duties: Kentucky's Need For Clarity In Liability Insurance And Claims Of Bad Faith, James Grant Sharp

Kentucky Law Journal

No abstract provided.

Expanding Reach: The Importance Of Batson V. Kentucky Thirty Years On, Melynda J. Price J.D., Ph.D.

Kentucky Law Journal

No abstract provided.

A Call To Criminal Courts: Record Rules For Batson, Catherine M. Grasso, Barbara O'Brien

Kentucky Law Journal

No abstract provided.

Taking A Step Back. Racial Injustice In America, Mark Peffley, Jeffrey Mondak

Kentucky Law Journal

No abstract provided.

The Cost Of Hope At The End Of Life: An Analysis Of State Right-To-Try Statutes, Tamara J. Patterson

Kentucky Law Journal

No abstract provided.

The Smug Assumption Of Reverse Discrimination: Abigail Fisher And Fisher V. University Of Texas At Austin, R. Nicholas Rabold

Kentucky Law Journal

Many expected Fisher v. University of Texas at Austin (Fisher I), 133 S. Ct. 2411 (2013)—an appeal from the Court ofAppeals for the Fifth Circuit upholding the University of Texas at Austin's race-conscious admissions program—to sound the death knell for race-based affirmative action in higher education. Instead, in remanding the case back to -the Fifth Circuit, the Supreme Court of the United States upheld the consideration of race in college admission programs, so long as such use could satisfy strict scrutiny. Nonetheless, Fisher I concerned academics and practitioners with its potentially limiting language, leaving the future of race-based …

Government As Investor: The Case Of Immediate Expensing, Rebecca N. Morrow

Kentucky Law Journal

For more than sixty years, tax scholars have recognized conditions under which the government ceases to be a mere taxing entity—imposing a rate of tax on a business’s profits—and through the operation of tax law becomes more like an investment partner—contributing its fair share of capital to new investments and proportionately sharing in losses as well as gains. These conditions, which are satisfied by immediate expensing policies, are now common.

The investment partner analogy has been analyzed from the perspective of a taxpayer who, as a result of partnership-like treatment, enjoys returns on investment that are effectively tax-exempt. However, far …

Implementing Medicaid Health Homes To Provide Medication Assisted Treatment To Opioid Dependent Medicaid Beneficiaries, Page M. Smith

Kentucky Law Journal

No abstract provided.

An Undetectable Constitutional Violation, Jill Wieber Lens

Kentucky Law Journal

In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant's harming nonparties. The jury can consider that evidence when determining the level of the defendant's reprehensibility, but punishment for causing that nonparty harm would violate the defendant's constitutional rights. Ten years later, this Article is the first to examine lower courts' attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin …

Higher Ed "Do Not Resuscitate" Orders, Matthew Adam Bruckner

Kentucky Law Journal

Congress has effectively precluded all institutions of higher education from reorganizing in the bankruptcy courts because it was concerned about exploitative profiteers opening fly-by-night colleges, defrauding students, and then finding refuge in bankruptcy. This choice harms students, employees, creditors, and communities. As such, this Article advocates that Congress should reverse its decision and allow IHEs to reorganize in bankruptcy without losing access to federal student loan and grant programs. To support this argument, this Article contrasts the bankruptcy treatment of healthcare enterprises to that of higher education enterprises. In doing so, this Article builds on my own prior work and …

Actus Reus, Mens Rea, And Brain Science: What Do Volition And Intent Really Mean?, Erica Beecher-Monas, Edgar Garcia-Rill

Kentucky Law Journal

The foundational elements of criminal law, actus reus and mens rea, are vague, imprecise, and indeterminate categories that are based on outdated notions about human behavior. These confused categories affect not only what legally constitutes choice, volition, and intent, but also the defendant's ability to present evidence (since the categories define the evidence that will be admissible), and ultimately, criminal liability. In this Article we explain how neuroscience allows us to reconsider these legal concepts and conceive a more informed view of human behavior (and therefore criminal liabilty). The Article explains how distortions in brain function affect the way …

Ferc's Small Hydropower Exemption: A Missed Opportunity, Alex B. Clay

Kentucky Law Journal

No abstract provided.

Exploring The Origins Of America's Adversarial Legal Culture, Edward A. Purcell Jr.

Other Publications

No abstract provided.

Scotus Denies Review In Gay Rights Case, Arthur S. Leonard

Other Publications

No abstract provided.

Law And The Modern Mind: Consciousness And Responsibility In American Legal Culture (Book Review), Edward A. Purcell Jr.

Other Publications

No abstract provided.

The Rise Of Ethical License, Christi Guerrini, Margaret Curnette, Jacob S. Sherkow, Christopher Scott

Other Publications

The Broad Institute's recent licensing of its gene editing patent portfolio demonstrates how licenses can be used to restrict controversial applications of emerging technologies while society deliberates their implications.

Laxity At The Gates: The Sec's Neglect To Enforce Control Person Liability, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

In recent years the SEC has repeatedly stressed the importance of holding gatekeepers accountable in order to promote effective corporate governance. In spite of these assertions, the Commission has failed to use two powerful tools at its disposal to pursue gatekeepers. Section 20(a) of the Securities Exchange Act provides for liability against “control persons.” This Section imposes liability upon any person who controls another liable person to the same extent as such controlled person, unless she can establish that she acted in good faith and did not directly induce the violation. Sections 15(b)(4)(E) and 15(b)(6))A) of the Exchange Act give …

A Battle Over Statutory Interpretation: Title Vii And Claims Of Sexual Orientation And Gender Identity Discrimination, Arthur S. Leonard

Other Publications

No abstract provided.

Manhattan Court Rebuffs Ex-Partner Custody Claim, Arthur S. Leonard

Other Publications

No abstract provided.

With Jurors In Mind: An Ethnographic Study Of Prosecutors’ Narratives, Anna Offit

Faculty Journal Articles and Book Chapters

This article focuses on prosecutors’ practices of drafting, critiquing and revising opening and closing statements for trial. Based on the observation of their real-time collaborative work, it argues that prosecutors’ concerns that they might be perceived as incredible or overzealous have substantive and structural impacts on their case preparation. In the process of commenting on evidence and witnesses and developing their authorial voices, prosecutors give definition to character traits and values they view as central to their jobs.

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 35, Iss. 2

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Authenticity Debacle: Why Art Authentication And Litigation Don't Mix, Andrea Sobolewski

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 1: Perspectives On Transactions In Comic Books, David Gallaher, Larry Hama, Lillian Laserson, Matthew Tynan, Thomas Crowell

Cardozo Arts & Entertainment Law Journal

No abstract provided.