Legislation Commons^™

For The Well-Being Of Minnesota’S Foster Children: What Federal Legislation Requires, Gail Chang Bohr

William Mitchell Law Review

This article will discuss the federal legislation and regulations—ASFA and CFSR—that hold the states accountable for the health and well-being of children and adolescents in foster care. This article will also discuss how the Early Periodic Screening Diagnosis and Treatment (EPSDT) program, the comprehensive health care services that states are required to provide through Medicaid, is used to address the health and wellbeing of children and adolescents in foster care. Critical to a discussion on the well-being of foster youth is the Chafee Foster Care Independence Act of 1999 that emphasized the states’ responsibility to ensure that youth in foster …

Off-Label Use And The Medical Negligence Standard Under Minnesota Law, Cynthia A. Moyer

William Mitchell Law Review

Who decides whether a drug can be used off-label and under what circumstances? If a physician decides to prescribe a drug off-label, what legal issues, if any, should the physician be aware of? With the increased practice of prescribing drugs for off-label use, coupled with a somewhat dated and incomplete medical negligence standard in Minnesota, the intersection of the off-label use doctrine with Minnesota’s medical negligence standard is ripe for review. This article examines the off-label use doctrine and the medical negligence standard under Minnesota law. First, the article examines what the phrase “off-label use” means. Next, the article explores …

Molloy V. Meier Extends Genetic Counseling Duty Of Care To Biological Mcclain Parents And Establishes That Legal Damages Must Occur Before A Wrongful Conception Action Accrues For Statute Of Limitations Purposes, Mark Hallberg, Teresa Fariss

William Mitchell Law Review

Inherited genetic disorders are a well-known cause of developmental delays in children. It is, therefore, “foreseeable” to physicians treating developmentally delayed children that parents of these children will rely on the physicians’ opinions of whether a genetic cause exists. Accordingly in 1992, when Dr. Diane Meier, a pediatrician, discovered developmental delays in S.F., the three-year-old daughter of Kimberly Flomer (now Molloy) and Robert Flomer, “accepted standards of pediatric practice” required Dr. Meier to order genetic testing, including testing for Fragile X Syndrome, one of the most common causes of inherited mental retardation. The foreseeable consequences of Dr. Meier’s alleged failure …

Raich, Health Care, And The Commerce Clause, Alex Kreit, Aaron Marcus

William Mitchell Law Review

This article considers to what extent health care may be viewed as a traditional area of state concern in the context of the Supreme Court’s revival of federalism principles, in particular limits on Congress’ Commerce Clause power, and what effect Raich v. Ashcroft, heard by the Court in the fall 2004 term, might have on these issues. Addressing these questions will necessarily involve exploration of medical marijuana policy as well as the role of the “traditional state interest” principle within the Commerce Clause. However, the central focus of this article is not what impact Raich may have on the Commerce …

Erisa Stock Drop Cases: An Evolving Standard, 38 J. Marshall L. Rev. 889 (2005), Craig C. Martin, Elizabeth L. Fine

UIC Law Review

No abstract provided.

Violating The Inviolable: Firearm Industry Retroactive Exemptions And The Need For A New Test For Overreaching Federal Prohibitions, 38 J. Marshall L. Rev. 955 (2005), James L. Daniels

UIC Law Review

No abstract provided.

Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report (Introduction And Participants)

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

The Language Of Higher Education Assessment: Legislative Concerns In A Global Context, Bonnie Urciuoli

Indiana Journal of Global Legal Studies

Globalization and Education Symposium

Case Note: Procuring A Different Cause: The Return Of The Procuring Cause Doctrine As Applied To Minnesota Real Estate Commission Disputes In Rosenberg V. Heritage Renovations, Llc, Robert Schug

William Mitchell Law Review

This note first examines some useful history and terminology regarding real estate commission disputes, the procuring cause doctrine, and Minnesota Statutes section 82.21.4 It follows with a summary of the facts of the Rosenberg decision and the Minnesota Court of Appeals’ and Minnesota Supreme Court’s analysis of the case. This note then analyzes the supreme court’s decision to apply the procuring cause doctrine in Rosenberg, and concludes with a plea to the Minnesota legislature to clarify that the effect of the statute is to abrogate that doctrine.

Note: Capping Noneconomic Damages In Medical Malpractice Suits Is Not The Panacea Of The “Medical Liability Crisis”, Melissa C. Gregory

William Mitchell Law Review

This note explores the history behind the rising costs of medical malpractice insurance rates and the responsive state legislative proposals to limit noneconomic damages. The current state of health care liability and the recent federal proposals that include caps on noneconomic damages are then discussed. This note analyzes the reasons why the federal government should not cap noneconomic damages, primarily because: (1) states are better able to regulate health care, (2) noneconomic damages are not the determinate cause of rising medical malpractice insurance rates, and (3) caps infringe on equal protection guarantees by limiting compensation of medical malpractice victims. This …

Note: Minnesota’S Proposed Same-Sex Marriage Amendment: A Flamingly Unconstitutional Violation Of Full Faith And Credit, Due Process, And Equal Protection, Jolynn M. Schlichting

William Mitchell Law Review

This note examines the constitutionality of Minnesota’s proposed marriage amendment. The note begins with a description of the recent national events leading up to the amendment’s proposal, followed by a discussion of the history of marriage in Minnesota, including passage of the Defense of Marriage Act in May 1997. Next, the note examines the language of Minnesota’s proposed marriage amendment and briefly addresses the process of amending state constitutional provisions. It then analyzes the proposed amendment’s constitutionality under the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution. Finally, the …

Note: The Legislature Should Clean Up Its Act—The Minnesota Citizens’ Personal Protection Act, A Dnr Technical Bill, And The Single-Subject And Title Clause Of The Minnesota Constitution, Melissa M. Milbert

William Mitchell Law Review

This note explores the Ramsey County District Court’s decision in Unity Church v. Minnesota recently affirmed by the Minnesota Court of Appeals. This note does not, however, debate the merits of Minnesota’s conceal-and-carry law. Part II traces the legislative path taken by both the natural resource and conceal-and-carry bills. Part II surveys the history of the single-subject and title clause of the Minnesota Constitution and the evolution of the Minnesota Supreme Court’s interpretation of the clause since its enactment. Part III summarizes the factual and procedural posture of the Unity Church decision. Part IV then contends that the legislature’s enactment …

What Counts As Fraud? An Empirical Study Of Motions To Dismiss Under The Private Securities Litigation Reform Act, Adam C. Pritchard, Hillary A. Sale

Articles

This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act (PSLRA) in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2002. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post-PSLRA, the Second …

Reaching Disclosure, Carl E. Schneider

Articles

It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method-requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insists that researchers warn subjects of the risks of experiments. The Patient Self-Determination Act compels medical institutions to remind patients about advance directives. The federal government's new privacy regulations instruct medical institutions to describe their privacy regime to patients. Not just the law of bioethics, but health law …

Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins

Faculty Scholarship

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …

Social Choice, Crypto-Initiaives, And Policymaking By Direct Democracy, Thad Kousser, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

What Is New In The New Statutory Interpretation? Introduction To The Journal Of Contemporary Legal Issues Symposium, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Congressional Reporting Requirements: Testing The Limits Of The Oversight Power, Jonathan G. Pray

University of Colorado Law Review

No abstract provided.

Revisiting Granite Falls:Why The Seattle Monorail Project Requires Re-Examination Of Washington's Prohibition On Taxation Without Representation, Matthew Senechal

Seattle University Law Review

The composition and actions of the un-elected Seattle Monorail Project (SMP) Board raise the question of whether the Washington State Constitution permits the legislature to delegate its taxing power to municipal corporations governed by unelected boards. Stated differently, the SMP Board and its actions present the question of whether the Washington State Constitution requires that local taxes be imposed only by officials who are elected by, and accountable to, the electorate burdened by the tax. While Washington's Constitution, political structures, and legal doctrine are designed to prevent "taxation without representation," the recent case of Granite Falls Library Facility Area v. …

There Ought To Be A Law: The Disclosure Focus Of Recent Legislative Proposals For Nonprofit Reform, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

Rewriting The Telecom Act: An Introduction, Philip J. Weiser

Publications

No abstract provided.

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Session Law 05-266, Florida Senate & House Of Representatives

Staff Analyses & Legislative Documents

No abstract provided.

The Supreme Court, Democracy And Institutional Reform Litigation, Ross Sandler, David Schoenbrod

NYLS Law Review

No abstract provided.

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

Kruse V. Wells Fargo Home Mortgage, Inc. (Decided September 10, 2004), Jennifer Katehos

NYLS Law Review

No abstract provided.

State Legislation And Human Trafficking: Helpful Or Harmful?, Stephanie Richard

University of Michigan Journal of Law Reform

Human trafficking is the modern day form of slavery. Despite the fact that thousands of people are trafficked into the United Sates each year, the majority of U.S. citizens are not aware of the nature and extent of this problem. In 2000, the U.S. government passed the Victims of Trafficking and Violence Protection Act (VTVPA) to combat this grave human rights abuse. This federal legislation takes a comprehensive approach to addressing the problem of human trafficking in the United States by acknowledging that effective prosecution cannot occur without safeguards and benefits for trafficking victims. To this end, the VTVPA enumerates …

Enforcing The Fair Housing Act: Can Agency Interpretations Override Congressional Intent In Anti-Discrimination Legislation?, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

On October 12, 2005, the Southern District of New York ruled that the New York State Attorney General was enjoined from enforcing state laws prohibiting discriminatory lending against national banks.1 The court found in favor of the Office of the Comptroller of the Currency (OCC), the federal regulator of national banks. The OCC claimed that while state fair lending laws had not been preempted, the New York State Attorney General’s (OAG) authority to enforce those laws had been preempted by a series of federal statutes and OCC-written regulations that give the OCC exclusive authority to bring any enforcement action against …

Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

Faculty Publications

The federal judicial branch has lately become the object of increasing scrutiny and distrust by its legislative counterpart. Congressional suspicion is often directed toward judicial discretion in criminal sentencing and, more generally, the degree to which judges are perceived to be beholden to a particular ideological point of view or personal bias. This distrust has bred a potent strain of political opportunism that Congress has manifested in several recent bills. One of these, the Feeney Amendment to the PROTECT Act, all but eliminated judicial discretion in sentencing and tacitly threatens judges' continued employment. Though the Supreme Court's recent decision in …