Law Commons^™

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

Elizabeth Keyes

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy

Patricia A. McCoy

Traditionally, policymakers, communities, and industry have regarded the Community Reinvestment Act ("CRA") as a positive mandate for banks and thrifts to do good by increasing investment in low- and moderate-income ("LMI") neighborhoods. When Congress enacted CRA, it was inconceivable that LMI neighborhoods might eventually receive too much credit in the form of abusive mortgages. However, by the late 1990s, predatory mortgages- exploitative high-cost loans to gullible borrowers-were ravaging the inner cities. We address the question: given the surge in predatory lending, how should CRA respond? CRA and federal subsidies to regulated lenders can create perverse incentives for lenders to engage …

Oklahoma Administrative Procedures: Cases And Materials, Michael Mitchelson

Michael Mitchelson

No abstract provided.

Throwing Dirt On Doctor Frankenstein's Grave: Accesss To Experimental Treatments At The End Of Life, Michael J. Malinowski

Michael J. Malinowski

Abstract

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research …

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Michael J. Malinowski

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

Agencies In Crisis?: An Examination Of State And Federal Agency Emergency Powers, Babette Boliek

Babette Boliek

That state and federal agencies have emergency powers, is well known. Much less is known about the process and circumstances under which these powers are exercised—subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and “deossification” of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this article presents new empirical …

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Nadia N. Sawicki

One of the most enduring debates at the intersection of administrative and tort law focuses on the challenge of identifying the most effective means of ensuring consumer safety. In some circumstances, standard-setting administrative regulations may be sufficient to protect consumers from harm while at the same supporting the growth of valuable industries. In other circumstances, regulation may need to be supplemented by a complementary tort regime that fills the compensation gap when consumers suffer injury. The discussion among policymakers and legal scholars about which system to favor is continually playing out in a variety of arenas, most notably in the …

The Federal Government’S Ability To Respond To A Major Terrorist Attack: Issues, Concerns And Inadequacies In The Disaster Law Construct, M. Jonathan Gil

Michael J Gil

The cunning and zeal of the world’s terrorist organizations require that this country prepare itself for large-scale disaster relief operations. As it stands, the Stafford Act, as well as federal and local government policies are lacking. The federal government has floundered in past situations, and Americans have died as a result. In order to remedy these shortcomings, the government should take two different stances: hands on, and hands off. The hands-on approach is designed to address the shortfalls of past disaster response and the current system, while the hands-off approach is designed to allow the entire relief operation to operate …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested engineered nanoparticles as a result of their contact with everyday consumer products. Nanoparticles are very small particles that are engineered using innovative technologies to be 1 to 100 nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers wide. Nanoscale materials are increasingly being used in a wide variety of areas, including electronic, magnetic, medical imaging, drug delivery, catalytic, materials applications, and cosmetic products. According to the National Institute of Occupational Health, new nanotechnology consumer products are coming …

Who’S Afraid Of The Supremacy Clause? State Regulation Of Air Pollution From Offshore Ships Is Upheld In Pacific Merchant Shipping Association V. Goldstene, Jennifer Hammitt

Jennifer Hammitt

No abstract provided.

Is The Attorney-Client Privilege A Privilege Of The Rich? Federal Hmis Database Reporting And Homeless Client Confidentiality, Jennifer Hammitt

Jennifer Hammitt

No abstract provided.

Is The Attorney-Client Privilege A Privilege Of The Rich? Federal Hmis Database Reporting And Homeless Client Confidentiality, Jennifer Hammitt

Jennifer Hammitt

The Homeless Management Information System (HMIS) is a new database reporting system mandated by the Department of Housing and Urban Development to track the usage of HUD services by homeless people. The HMIS requires collecting identifiable personal information about the individuals who use the services and entering that information into a database that enables information sharing and referral services. This comment arose out of an investigation into the HMIS database and confidentiality issues that I did while working at Legal Services of Greater Miami, Inc., as part of the Homeless Legal Assistance Project in the summer of 2009. As this …

Out With A Bang: The Collapse Of Yucca Mountain Signals The Rise Of The New U.S. Cooperative Federalism Nuclear Reprocessing Model, Stefani C. Norrbin, Faye E. Jones

Faye E Jones

This Article argues that after the collapse of Yucca Mountain, the U.S. should move away from direct disposal by creating a new government backed, state-run corporation modeled after France’s Areva, to implement nuclear reprocessing in the U.S. This new model will help address the currently bankrupt nuclear waste system in the U.S. by using the money from the Nuclear Waste Fund that was collected for Yucca Mountain to provide financial support to states for nuclear reprocessing projects. Further, by working together, we can promote competition and innovation through state-run corporations backed by federal funding. In order to make the initial …

A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Michael J. Malinowski

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Barbara Lindemann & Paul Grossman, Employment Discrimination Law (Supp. 2009-10), Richard Gonzalez

Richard J. Gonzalez

No abstract provided.

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

Organophosphates, Friend And Foe: The Promise Of Medical Monitoring For Farm Workers And Their Families, Gabriel Eckstein, Adriane Busby

Gabriel Eckstein

Millions of farm workers nation-wide who load, mix and/or apply pesticides are exposed to incredible amounts of pesticides on a daily basis. Various inefficiencies and inconsistencies in the regulatory system – including insufficient illness reporting data systems, lack of regulatory compliance and enforcement, and inadequate data and information on the chronic effects of exposure and overexposure to various pesticides – increase the likelihood that these workers will continue to be exposed to dangerous amounts of pesticides.

This article assesses the existing mechanisms designed to protect farm workers from occupational exposure to pesticides and identifies and analyzes some of the shortcomings …

Plain Language Patents, Robin C. Feldman

Robin C Feldman

Law is a process of Bounded Adaptation. The law that exists at any given moment is constantly driven to adapt to changing circumstances within the framework of what has gone before. The boundaries of that framework are policed by the necessity of articulating an interpretation in a way that gains general acceptance. It is the need to effectively articulate a common logic that mitigates the distortion of personal perspective.

This process of Bounded Adaptation cannot proceed effectively without an adequately structured dialogue that will promote the flow of information and analysis. Nowhere is this dialogue more challenging than at the …

Dealing With The Realities Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research, Michael J. Malinowski

Michael J. Malinowski

No abstract provided.

Dealing With The Reality Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research , Michael J. Malinowski

Michael J. Malinowski

This article challenges proposals to apply law to greatly constrain if not wholly prohibit race-based genetics research with arguments based in bioethics, research pragmatism, and genetic science. The article concludes that proposals to stretch U.S. antidiscrimination jurisprudence to regulate away race and ethnicity in genetics research are misguided at best.

In Wake Of Deadly Tsunami Comes Dangerous Litigation, Daniel Lyons

Daniel Lyons

No abstract provided.

Ancillary Issues Concerning Agency Explanations, Harold Krent

Harold J. Krent

No abstract provided.

Litigation At The Illinois Human Rights Commission (With Lori D. Ecker), Richard Gonzalez

Richard J. Gonzalez

No abstract provided.