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Articles 1261 - 1290 of 1955

Full-Text Articles in State and Local Government Law

Determining The Indeterminate Defect., J. Gregory Marks Jan 2005

Determining The Indeterminate Defect., J. Gregory Marks

St. Mary's Law Journal

Abstract Forthcoming.

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Minnesota: Leading The Way On Canadian Prescription Medicine Importation, Kevin Goodno, Karen Janisch Jan 2005

Minnesota: Leading The Way On Canadian Prescription Medicine Importation, Kevin Goodno, Karen Janisch

William Mitchell Law Review

In the United States, about $160 billion is spent on prescription medicines each year, with Minnesotans spending about $3 billion. The costs of prescription medicines receive so much attention in large part because, although prescription medicine costs constitute only 10.5% of total health care spending, they account for 23% of the total out-of-pocket costs that people incur when purchasing health care. Minnesota has been a leader in controlling prescription medicine costs. It has aggressively used purchasing pools when possible, and encouraged the use of lower cost, generic prescription medicines when appropriate. Even with these efforts to control costs, prescription medicines …

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Aetna V. Davila/Cigna V. Calad: A Missed Opportunity, Leonard A. Nelson Jan 2005

Aetna V. Davila/Cigna V. Calad: A Missed Opportunity, Leonard A. Nelson

William Mitchell Law Review

On June 21, 2004, the United States Supreme Court decided the health law “case of the year” in the two consolidated cases of Aetna Health, Inc. v. Davila and CIGNA HealthCare of Texas, Inc. v. Calad. The Court held that section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) “completely preempt[s]” and thus invalidates the tort liability provisions of the Texas Health Care Liability Act (THCLA). The case could potentially affect the rights of millions of Americans in a matter of vital concern—whether they will receive the health insurance coverage promised them if they become unable to …

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For The Well-Being Of Minnesota’S Foster Children: What Federal Legislation Requires, Gail Chang Bohr Jan 2005

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 …

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Off-Label Use And The Medical Negligence Standard Under Minnesota Law, Cynthia A. Moyer Jan 2005

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 …

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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 Jan 2005

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 …

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Raich, Health Care, And The Commerce Clause, Alex Kreit, Aaron Marcus Jan 2005

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 …

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Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo Jan 2005

Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.

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Voting Rights At A Crossroads: Return To The Past Or An Opportunity For The Future, Barbara Arnwine Jan 2005

Voting Rights At A Crossroads: Return To The Past Or An Opportunity For The Future, Barbara Arnwine

Seattle University Law Review

This keynote address for the 2005 Symposium: Where's My Vote? Lessons Learned from Washington State's Gubernatorial Election was presented by Barbara Arnwine. The focus of the presentation was on "Voting Rights at a Crossroad: Return to the Past or an Opportunity for the Future?" To students who are on the career path to becoming practitioners of law, and to attorneys and law professors, no role is more important than enhancing democracy. Ms. Arnwine's speech addresses the topics of voting rights from a national perspective highlighting the most pressing challenges. In addressing this theme, four areas of voting rights are covered …

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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 Jan 2005

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 …

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Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso Jan 2005

Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso

St. Mary's Law Journal

In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …

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Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman Jan 2005

Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman

St. Mary's Law Journal

Abstract Forthcoming.

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Unintentional Franchising., Mark H. Miller Jan 2005

Unintentional Franchising., Mark H. Miller

St. Mary's Law Journal

The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.

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Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion Jan 2005

Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion

St. Mary's Law Journal

The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …

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Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl Jan 2005

Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl

St. Mary's Law Journal

Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …

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Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg Jan 2005

Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg

St. Mary's Law Journal

The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …

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Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice Jan 2005

Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice

St. Mary's Law Journal

Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …

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Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom Jan 2005

Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom

St. Mary's Law Journal

In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …

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Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris Jan 2005

Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris

St. Mary's Law Journal

Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …

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Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore Jan 2005

Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore

St. Mary's Law Journal

The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …

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The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long Jan 2005

The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long

St. Mary's Law Journal

While few in the legal profession would refer to clients as “property”, it is difficult to think some lawyers do not believe they possess something similar to property rights in their retainer agreements with clients. Not surprisingly, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully “stolen” a client or otherwise interfered with the attorney’s “property.” Courts have traditionally been reluctant to hold attorneys liable for litigation conduct that results in harm to adversaries or their attorneys. Plaintiff-attorneys generally have a better chance of succeeding when they complain that another attorney—while …

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Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow Jan 2005

Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow

St. Mary's Law Journal

Legal malpractice jurisprudence is a dynamic and evolving area of Texas law. In its evolution, many issues have arisen regarding potential areas for attorney liability and discipline. The Texas Supreme Court opinion in Alexander v. Turtur & Associates, Inc. discusses the “suit within the suit” requirement for causation in litigation malpractice cases. The case also raised an important question—whether and in what circumstances causation should be treated as a question of law for the trial judge in the malpractice case, rather than as a question of fact for the jury. The Alexander opinion suggests that both the jury submission issues …

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The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone Jan 2005

The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone

St. Mary's Law Journal

Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could …

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Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley Jan 2005

Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley

St. Mary's Law Journal

Abstract Forthcoming.

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Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman Jan 2005

Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman

St. Mary's Law Journal

Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …

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Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle Jan 2005

Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle

St. Mary's Law Journal

The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …

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Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer Jan 2005

Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer

St. Mary's Law Journal

In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …

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Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone Jan 2005

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

NYLS Law Review

No abstract provided.

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The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie Jan 2005

The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie

St. Mary's Law Journal

Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …

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The Washington 2004 Gubernatorial Election Crisis: The Necessity Of Restoring Public Confidence In The Electoral Process, Joaquin G. Avila Jan 2005

The Washington 2004 Gubernatorial Election Crisis: The Necessity Of Restoring Public Confidence In The Electoral Process, Joaquin G. Avila

Seattle University Law Review

This Article details the plethora of problems associated with Washington State's 2004 gubernatorial election and explores the proposed electoral reforms in light of prior threats to the electoral process. The Article postulates that electoral reforms in the administration of elections also present an important opportunity to provide minority communities with greater access to the political process. Part II of this Article begins with a history ofvoting discrimination in the United States. This history provides a context to the 2004 gubernatorial election in Washington. In addition, this history provides an important background context for assessing whether reforms in the administration of …

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