Law Commons^™

Social Solidarity In Health Care, American-Style, Erin C. Fuse Brown, Matthew B. Lawrence, Elizabeth Mccuskey, Lindsay F. Wiley

Faculty Scholarship

The ACA shifted U.S. health policy from centering on principles of actuarial fairness toward social solidarity. Yet four legal fixtures of the health care system have prevented the achievement of social solidarity: federalism, fiscal pluralism, privatization, and individualism. Future reforms must confront these fixtures to realize social solidarity in health care, American-style.

Paying For Unapproved Medical Products, Kelly Mcbride Folkers, Alison Bateman-House, Christopher Robertson

Faculty Scholarship

This symposium article examines the use of investigational (un-approved) medical products in the United States, with particular focus on who pays for this use. In the United States, the question of who pays for the use of approved medical products for their intended indications is complicated enough, with some expenses borne by private payers, some by public payers, some covered as charity care, and some paid out of pocket by patients. A separate question is off-label use, in which an approved medical product is used for an unapproved indication. In this article, we focus on a narrower issue: what entities …

The Revival Of Respondeat Superior And Evolution Of Gatekeeper Liability, Rory Van Loo

Faculty Scholarship

In an era of servants and masters, respondeat superior emerged to hold the powerful accountable for the acts of those they control. That doctrine’s significance has only grown in an economy driven by large corporations that rely heavily on legions of subsidiaries and independent contractors, such as banks deploying independent call centers, oil companies using drilling contractors, and tech platforms connecting consumers to app developers. It is widely believed that firms can avoid third- party liability for many laws by outsourcing or creating subsidiaries.

This Article shows that common narratives of the demise of third-party liability are incomplete. Respondeat superior …

Shelter Mobility, And The Voucher Program, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

What is to be done about the poor and about poor neighborhoods? When it comes to housing policy, the current hope is that the Housing Choice Voucher Program (formerly the Section 8 Voucher Program) can provide an or ambitiously the answer to this perennial societal question. By piggybacking on the private rental market, the voucher program supposedly has numerous advantages over traditional, project-based, public housing. Not only is it less costly to house poor people in privately owned units compared to the cost of constructing and maintaining public housing, but the voucher program also offers the possibility of deconcentrating the …

Remarks, Lowell Beck

Fordham Law Review

No abstract provided.

Remarks, Jason Berman

Fordham Law Review

No abstract provided.

Remarks, Akhil Reed Amar

Fordham Law Review

No abstract provided.

The Twenty-Fifth Amendment—In The Words Of Birch Bayh, Its Principal, John D. Feerick

Fordham Law Review

No abstract provided.

Birch Bayh And The Twenty-Fifth Amendment: Lessons In Leadership, Joel K. Goldstein

Fordham Law Review

No abstract provided.

Healing A Fractured Preemption Doctrine: The Impact Of Merck Sharp & Dohme Corp. V. Albrecht On Impossibility Preemption Defenses, Elizabeth Marley

Fordham Law Review

Patient safety depends on tort litigation to identify a brand-name drug’s undisclosed risks, illuminate flaws in a drug’s design, and raise concerns that a drug requires further study before it is safe for patient use. However, since the U.S. Supreme Court’s landmark decision in Wyeth v. Levine, which permitted the plaintiff to move forward but recognized an in-principle impossibility preemption defense, drug manufacturers have shielded themselves from liability under a range of circumstances. Under this defense, federal law preempts state law tort actions against brand-name drug manufacturers in any court across the country. Yet, the scope of the impossibility preemption …

Action, Affiliation, And A Duty Of Care: Physicians’ Liability In Nontraditional Settings, Saniya Suri

Fordham Law Review

As healthcare delivery options drastically expand and change, patients and physicians continue to interact in unique ways. These interactions have become more complex and unconventional, challenging courts to establish whether a duty of care exists between the physician and patient in these new situations. Courts that answer this duty question affirmatively do so either by applying a more capacious understanding of the traditional physicianpatient relationship or by deeming foreseeability of harm and reliance sufficient under certain circumstances, even in the absence of an actual physician-patient relationship. This Note investigates this unresolved duty question in two contexts: curbside consultations—when a physician …

Congressional Securities Trading, Gregory Shill

Indiana Law Journal

The trading of stocks and bonds by Members of Congress presents several risks that warrant public concern. One is the potential for policy distortion: lawmakers' personal investments may influence their official acts. Another is a special case of a general problem: that of insiders exploiting access to confidential information for personal gain. In each case, the current framework which is based on common law fiduciary principles is a poor fit. Surprisingly, rules from a related context have been overlooked.

Like lawmakers, public company insiders such as CEOs frequently trade securities while in possession of confidential information. Those insiders' trades are …

Joint Identities?: A Self-Case Study Of The Professional Identity Development Of J.D./Ph.D. Professionals In Education Law, Raquel Muniz, Dwayne Wright, Rafael E. Alvarado, Vanessa Miller, J. Queen Mcgrew

The Journal of Law and Education

No abstract provided.

Academic Law Libraries And Scholarship: Communication, Publishing, And Ranking, Dana Neacscu, James M. Donovan

The Journal of Law and Education

No abstract provided.

Expanding The Legal Services Ecosystem: An Educational Model To Improve Access To Immigration Justice Through Legal Paraprofessionals, Michele R. Pistone

The Journal of Law and Education

No abstract provided.

Mergers Between Higher Education Institutions: Regulatory Considerations, Antitrust Concerns, And Best Practices, Phillip Z. Yao

The Journal of Law and Education

No abstract provided.

Title Ix: Risky Business?, Perry A. Zirkel

The Journal of Law and Education

No abstract provided.

The Real Deal With Declining Enrollment In Higher Education, Kathleen Conn

The Journal of Law and Education

No abstract provided.

Nebraska Transcript (University Of Nebraska College Of Law), Volume 53, Number 2, Fall 2020

Nebraska Transcript

Dean's Message - Richard Moberly 1

Professor Anthony Schutz focuses on pedagogy, research as College’s new associate dean for faculty 4

Women Lead 2020 conference spurs attendees to ‘Claim Your Power’ 6

Molly Brummond honored for her outstanding contributions to women 10

John Lenich honored for work with students 12

Bobby Larsen selected as American Constitution Society Next Generation Leader 13

Anna Shavers receives Nebraska Bar Association 2020 Diversity Award 13

Sullivan’s Tenant Assistance Project represents renters facing eviction 14

Alumni, Tenant Assistance Project, a projected conceived by alumna Mindy Rush Chipman, ’07, and professor Ryan Sullivan, ’10, honored with …

For The Betterment Of All Mankind Claiming The Benefits Of Outer Space Through Intellectual Property Rights, Maeve Dineen

UC Law Science and Technology Journal

No abstract provided.

Katz And Covid-19 How A Pandemic Changed The Reasonable Expectation Of Privacy, Wayne Unger

UC Law Science and Technology Journal

COVID-19 spread to 189 countries and infected tens of millions of people in the matter of months. Organizations, including governments and employers, turned to health surveillance technologies to slow the spread and combat the disease. Protected health information and personal information are required for the proper and effective functioning of the health surveillance technologies. The collection, use, and dissemination of protected health and personal information raised data privacy and security concerns. But under the current data privacy and security regime—based on the reasonable expectation of privacy standard—protected health and personal information is not protected to the extent that it needs …

Notpetya, Not Warfare: Rethinking The Insurance War Exclusion In The Context Of International Cyberattacks, Katherine S. Wan

Washington Law Review

When an insurer wants to avoid coverage of a specific type of loss, it must explicitly exclude the loss in its policy. The war exclusion is a typical exclusion found in insurance policies that excuses insurers from covering losses caused by war or warlike actions. Courts interpreting the exclusion have traditionally held that war must consist of hostilities between sovereign nations. Despite the rise of state-sponsored cyberattacks, the United States has been hesitant to officially declare war in response. Even still, insurers argue that their war exclusions should apply to these new cyber losses. Courts are now tasked with reanalyzing …

University Of Baltimore Law Review, Volume 50, Issue 1, Fall 2020

University of Baltimore Law Review

No abstract provided.

Incentivizing Top-Musicians, Guy A. Rub

Texas A&M Journal of Property Law

Part I explores the challenge that COPYRIGHT’S EXCESS tackles. It explains the core of copyright’s incentive theory, why it is difficult to test it empirically, and how COPY- RIGHT’S EXCESS rises to that challenge, especially by exploring the lack of correlation between sales and productivity, and, in particular, superstars’ productivity in the music industry.

Parts II-IV of this Essay consider several explanations for the lack of correlation. Part II addresses the sometimes-neglected role of the recording companies. Those intermediaries profoundly affect the art- ists’ compensation and their creative decisions. Therefore, any analysis of the connection between sales, artistic income, and …

This Land Is Not Our Land, K-Sue Park

University of Chicago Law Review

“The story of our relationship to the earth is written more truthfully on the land than on the page. It lasts there. The land remembers what we said and what we did.” –Robin Wall Kimmerer, Braiding Sweetgrass 341 (Milk-weed 2013)

“The land and the wealth that began in it still carry the shape of history. . . . The land remembers. But what do we remember of it? Every political contest over claims on the land is, in part, a contest over what will be remembered and what will be forgotten.” –Jedediah Purdy, This Land Is Our Land: The Struggle …

Frankfurter, Abstention Doctrine, And The Development Of Modern Federalism: A History And Three Futures, Lael Weinberger

University of Chicago Law Review

In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. That changed in 1939. Something new was hap-pening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, …

California’S Proposition 47 And Effectuating State Laws In Federal Sentencing, Brenna Ledvora

University of Chicago Law Review

Proposition 47 is a California voter initiative that reduced possessory drug offenses and minor thefts from felonies to misdemeanors. The law allows individuals to retroactively reclassify their convictions and mandates that these convictions shall be considered misdemeanors “for all purposes.” Under California law, reclassified convictions cannot be predicate felonies for future state sentencing enhancements. However, federal courts have held that reclassified convictions still constitute prior convictions for federal sentencing enhancements. Thus, these convictions still trigger felony-based enhancements. This Comment argues that this result is not mandated by Supreme Court precedent and that it conflicts with California’s intent to ameliorate the …

Litigating The Line Drawers: Why Courts Should Apply Anderson-Burdick To Redistricting Commissions, Andrew C. Maxfield

University of Chicago Law Review

In the wake of the Supreme Court’s recent decision in Rucho v Common Cause, ruling partisan gerrymandering claims nonjusticiable, redistricting commissions have never been more important. These commissions remain one of the few methods to remove the redistricting process from the hands of self-interested state legislatures. To accomplish this goal, many commissions limit the number of Republicans and Democrats who can serve on the commission and bar certain political actors— such as legislators and party leaders—from serving as commissioners. Although likely necessary to ensure redistricting commissions’ independence, these provisions burden the First Amendment associational rights of the excluded individuals and …

Exhaustion Of Local Remedies And The Fsia Takings Exception: The Case For Deferring To The Executive’S Recommendation, Ikenna Ugboaja

University of Chicago Law Review

The Takings Exception to the Foreign Sovereign Immunities Act (FSIA) abrogates the defense of sovereign immunity when a foreign government takes property in violation of international law. But the exception does not specify whether plaintiffs must first exhaust local remedies in the relevant foreign country before filing suit in the United States. In the absence of clear statutory guidance, the circuit courts have reached divergent conclusions: the Seventh Circuit has held that the exhaustion rule is required under customary international law, the Ninth Circuit has suggested that courts could impose it at their discretion for reasons of comity, and the …

Social Justice And Copyright's Excess, Elizabeth L. Rosenblatt

Texas A&M Journal of Property Law

My life is real. So when I hear about an editor asking: What’s up with my output? I’m like: What’s up with you even commenting on my life? Niggas don’t know my life. That’s the bourgeoisie approach that I get offended by because this ain’t no bubble. This ain’t no vacuum we doing this music out of. That’s why people connect to the pain in it. Because it’s real. That’s the part they should respect. These radio hits, these charts, they don’t validate the truth and the message. That’s when I start to be like, “Okay, you ain’t got a …