Law and Society Commons^™

No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Abstract Forthcoming.

Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal

In Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, the Beaumont Court of Appeals articulated the test that should be applied when considering whether the condemnation of private property, which would result favorably for pipeline companies, should be allowed. In Denbury, the Beaumont Court of Appeals balanced the protection of private property rights against the need for true common carrier pipeline companies to condemn private property. The court held that in order to condemn private property, a substantial public interest must exist to justify such condemnation. The Texas Supreme Court, however, reversed the decision of the Beaumont Court of …

Tx Rice V. Denbury., Thomas Alan Zabel

St. Mary's Law Journal

Abstract Forthcoming.

The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan

St. Mary's Law Journal

Abstract Forthcoming.

The Demise Of Anti-Panhandling Laws In America., Natie Pilgram Neidig

St. Mary's Law Journal

Abstract Forthcoming.

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Abstract Forthcoming.

Genome Editing And The Jurisprudence Of Scientific Empiricism, Paul Enriquez

Vanderbilt Journal of Entertainment & Technology Law

Humankind has reached, in tow by the hand of a scientific breakthrough called CRISPR, the Rubicon of precise genetic manipulation first envisioned over fifty years ago. Despite CRISPR's renown in science and its power to transform the world, it remains virtually unaddressed in legal scholarship. In the absence of on-point law, the scientific community has attempted to reach some consensus to preempt antagonistic regulation and prescribe subjective standards of use under the guise of a priori scientific empiricism. Significant and complex legal issues concerning this technology are emerging, and the void in legal scholarship is no longer tolerable.

This Article …

United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Abstract Forthcoming.

Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

The analysis of real covenants in wellhead contracts (e.g., gas purchasing, gathering, processing, etc.) by Texas courts has not been consistent. As a result, some bankruptcy courts are holding that a debtor in bankruptcy is not liable for a prior contractual obligation, unless the covenant is held to be a real covenant running with the land. For instance, the holding in In re Sabine Oil & Gas Corp. (Sabine I) contradicts the holdings in Westland Oil Development Corp. v. Gulf Oil Corp. and in Inwood North Homeowners' Association, Inc. v. Harris. The Sabine I court held that because the Acreage …

An Expressive Theory Of Privacy Intrusions, Craig Konnoth

Publications

The harms of privacy intrusions are numerous. They include discrimination, reputational harm, and chilling effects on speech, thought, and behavior. However, scholarship has yet to fully recognize a kind of privacy harm that this article terms "expressive."

Depending on where the search is taking place and who the actors involved are--a teacher in a school, the police on the street, a food inspector in a restaurant--victims and observers might infer different messages from the search. The search marks the importance of certain societal values such as law enforcement or food safety. It can also send messages about certain groups by …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Reproductive Selection Bias, Lauren R. Roth

Scholarly Works

Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not …

Rethinking Body Property, Kara W. Swanson

Florida State University Law Review

Body products, including blood, gametes, and kidneys, are a routine part of contemporary medicine. They are also controversial. There is a strong preference for donated gifts, based on an intuition that gifts are pure, altruistic, and healthy, and that purchased products (commodities) are tainted, exploitative, and dangerous. Law and policy reflect this dichotomy, preventing market exchanges either by declaring body products non-property or banning sales by the supplying body. Yet with growing scarcity leading to injustice in the allocation and harvesting of body products, calls to allow sales have been increasing, motivating proposals to increase supplies by compensating bone marrow …

Newsroom: Horwitz On Marijuana Legalization 7/15/2016, John S. Kiernan, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Medicaid Maximization And Diversion: Illusory State Practices That Convert Federal Aid Into General State Revenue, Daniel L. Hatcher

All Faculty Scholarship

For years, states have been using illusory schemes to maximize federal aid intended for Medicaid services-and then often diverting some or all of the resulting funds to other use. And states have help. Private revenue maximization consultants are hired by states to increase Medicaid claims, often for a contingency fee. We do not know the exact amount of federal Medicaid funds that has been diverted to state revenue and private profit each year, but it is in the billions.

The states' revenue strategies take advantage of the matching-grant structure of the Medicaid program. When state funds are spent on eligible …

Disrupting The Path From Childhood Trauma To Juvenile Justice: An Upstream Health And Justice Approach, Yael Cannon, Andrew Hsi

Georgetown Law Faculty Publications and Other Works

A groundbreaking public health study funded by the U.S. Centers for Disease Control and Prevention (CDC) and the Kaiser Foundation found astoundingly high rates of childhood trauma, including experiences like abuse, neglect, parental substance abuse, mental illness, and incarceration. Hundreds of follow-up studies have revealed that multiple traumatic adverse childhood experiences (or “ACEs”) make it far more likely that a person will have poor mental health outcomes in adulthood, such as higher rates of depression, anxiety, suicide attempts, and substance abuse. Interestingly, the original ACE Study examined a largely middle-class adult population living in San Diego, but subsequent follow-up studies …

Health Reform And Correctional Health Care: How The Affordable Care Act Can Improve The Health Of Ex-Offenders And Their Communities, Joel B. Teitelbaum, Laura G. Hoffman

Fordham Urban Law Journal

No abstract provided.

Healthy Reform, Healthy Cities: Using Law And Policy To Reduce Obesity Rates In Underserved Communities, Christine Fry, Sara Zimmerman, Manel Kappagoda

Fordham Urban Law Journal

No abstract provided.

Sleep: A Human Rights Issue, Clark J. Lee

Homeland Security Publications

Recognition of sleep as a human rights issue by governmental and legal entities (as illustrated by recent legal cases in the United States and India) raises the profile of sleep health as a societal concern. Although this recognition may not lead to immediate public policy changes, it infuses the public discourse about the importance of sleep health with loftier ideals about what it means to be human. Such recognition also elevates the work of sleep researchers and practitioners from serving the altruistic purpose of improving human health at the individual and population levels to serving the higher altruistic purpose of …

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Health Information And Data Security Safeguards, 32 J. Marshall J. Info. Tech. & Privacy L. 133 (2016), Jane Kim, David Zakson

UIC John Marshall Journal of Information Technology & Privacy Law

The healthcare industry possesses information coveted by cyber criminals. Unfortunately, healthcare providers are also among the most vulnerable and unprepared to deal with cyber attacks. The Introduction sets the background of this paper with cyber security statistics of the healthcare sector. Part A of this paper will discuss how new Russian law impacts global data security. Part B takes a broad look at data security safeguards. Part C focuses on U.S. attempts at safeguarding data through NIST and its Presidential Policy Directive. In Part D, the paper explores in greater detail causes that precipitate security breaches and specific security defenses …

From Patient Rights To Health Justice, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Models emphasizing professional autonomy, patient rights, market power, and health consumerism are no longer adequate to address the increasingly social, collective nature of health law institutions, instruments, and norms. What is needed is a new model that expressly recognizes the public-alongside the patient, the provider, and the payer-as an important stakeholder and active participant in decisions about medical treatment, health care coverage, and allocation of scarce resources. In a previous article, the author looked to the environmental justice, reproductive justice, and food justice movements for inspiration in developing a "health justice" approach to eliminating social disparities in health. This Article …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

Trauma-Informed Co-Parenting: How A Shift In Compulsory Divorce Education To Reflect New Brain Development Research Can Promote Both Parents' And Childrens' Best Interests, Nat Stern, Karen Oehme, Anthony J. Ferraro, Lisa S. Panisch, Mallory Lucier-Greer

Scholarly Publications

No abstract provided.

Improving The Medical Services System's Response To Domestic Violence, Nat Stern, Karen Oehme, Elizabeth Donnelly, Rebecca Melvin

Scholarly Publications

No abstract provided.

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot), Sheila Wildeman

Articles, Book Chapters, & Popular Press

The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care …

Contract Development In A Matching Market: The Case Of Kidney Exchange, Kimberly D. Krawiec, Wenhao Liu, Marc L. Melcher

Faculty Scholarship

We analyze a new transplant innovation — Advanced Donation, referred to by some as a kidney “gift certificate,” “layaway plan,” or “voucher — as a case study offering insights on both market and contract development. Advanced Donation provides an unusual window into the evolution of the exchange of a single good — a kidney for transplantation — from gift, to simple barter, to exchange with a temporal separation of obligations that relies solely on trust and reputational constraints for enforcement, to a complex matching market in which the parties rely, at least in part, on formal contract to define and …

Bridge Over Troubled Waters: Resolving The Ri Grande (Rio Bravo) Water Dispute., Ruben R. Barrera, Dan A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.