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Archive for April, 2011

Prof. Jost on Health Care Reform and the Budget

April 29, 2011 Leave a comment

Timothy JostProfessor Timothy S. Jost, the Robert L. Willett Family Professor of Law, recently posted an article titled “Consensus and Conflict in Health System Reform — The Republican Budget Plan and the ACA” on the New England Journal of Medicine’s Health Policy & Reform website.

In the post, Professor Jost takes a look at the Republican budget proposal from Representative Paul Ryan (R-WI) and compares it to the Affordable Care Act, which was signed into law in March 2010. He finds eight commonalities between the two, suggesting that there is a growing consensus regarding the way in which the U.S. health care system should be structured. However, Prof. Jost then proceeds to identify five stark contrasts between the two plans. While there are certain agreements, Prof. Jost highlights the fundamental differences that must be addressed.

To read Professor Jost’s post, you may find it here.

Congratulations to Professor Jost.

Prof. Wilson on LGBT Civil Rights

April 29, 2011 Leave a comment

Robin WilsonLast Tuesday, April 26, Professor Robin Wilson, the Class of 1958 Law Alumni Professor of Law, was a panelist for a New York City Bar forum, titled “Reconciling Rights: Balancing Lesbian Gay, Bisexual, and Transgender (LGBT) Civil Rights with First Amendment Religious Protections.”

Professor Wilson discussed marriage rights, including her proposal for religious exemptions that she presented to the Maryland Legislature during testimony. Her co-panelist at the event was Maryland senator Jamie Raskin, who sponsored a Bill that embraced the idea of exemptions and adopted some of Professor Wilson’s proposals. Prof. Wilson also described the proposed exemptions, addressing why she believed the exemptions are needed, how she saw them operating, the impact they would have on gay and lesbian couples, and the impact they might have on other types of couples who might be subject to religious objections, like interracial couples or interfaith couples.

Congratulations to Professor Wilson.

Anthony M. Kreis on Educational Media Co. v. Swecker

April 28, 2011 Leave a comment

Third year law student, Anthony Michael Kreis, recently had his article that reviewed the Fourth Circuit case, Educational Media Co. at Virginia Tech Inc. v. Swecker, accepted by the South Carolina Law Review, 62 S.C. L. Rev. 533 (2011), for its annual Fourth Circuit Survey.

Virginia’s Alcohol Beverage Control Board is charged with promulgating regulations governing the possession, transportation, distribution, and sale of alcohol in the Virginia. In keeping with its mandate, the Board banned alcohol advertisements in any “college student publication”– a publication distributed to or aimed at a community primarily under 21 years of age.  Losing thousands of dollars in potential revenue, newspapers at the University of Virginia and Virginia Tech brought suit against Virginia arguing the Board’s ban violated the First Amendment.  The case was appealed to Fourth Circuit Court of Appeals after the newspapers’ successful challenge in district court.  The Fourth Circuit reversed finding that the ban did not violate the First Amendment.  Kreis reviews the doctrinal underpinnings of the majority and minority opinions.  He then provides additional commentary on why the Fourth Circuit’s treatment of the claim possibly caused a split with the Third Circuit Court of Appeals and why the United States Supreme Court denied certiorari.

Congratulations to Anthony on this exceptional publication.

Prof. Johnson on Analytic Memos

April 27, 2011 Leave a comment

Lyman JohnsonProfessor Lyman P. Q. Johnson, the Robert O. Bentley Professor of Law, recently had his article, Techniques to Teach Substance and Skill in Contract Drafting: In-Office Meetings and Analytical Memos, published in Transactions: The Tennessee Journal of Business Law.

The short article is based on a talk Prof. Johnson gave at Emory Law School on Transactional Lawyering. One overall pedagogical aim of any transactional course is to link skills training with insistence on in-depth substantive learning about law and business. By doing this, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding. Professor Johnson describes two techniques for making such a connection: in-office meetings and detailed “companion” analytical memos.

The article can be found on SSRN here. A transcript of Prof. Johnson’s presentation at Emory can be found on SSRN here.

Congratulations to Professor Johnson.

Prof. Johnson on Delaware’s Non-Waivable Duties

April 26, 2011 Leave a comment

Lyman JohnsonProfessor Lyman P. Q. Johnson, the Robert O. Bentley Professor of Law, recently had his article, Delaware’s Non-Waivable Duties, 91 B.U. L. Rev. 701 (2011) published in the Boston University Law Review.

The article disputes the seemingly settled view that recently enacted statutes in Delaware legally permit fiduciary duties to be waived in noncorporate business associations. Professor Johnson rests his argument on the Delaware Constitution, which vests the Delaware Court of Chancery with general equity jurisdiction and powers of a kind that cannot be curtailed by legislative action. Consequently, Prof. Johnson argues that neither the new and much-heralded waiver statutes, nor the private agreements they endorse, have divested Delaware courts of their traditional power and responsibility over fiduciary duties in limited liability companies (LLCs) or partnerships.

The article may be found either on SSRN here or at the BU Law Review here.

Congratulations to Professor Johnson on this publication.

Prof. Franck on Investment Treaty Arbitration

April 22, 2011 Leave a comment

Susan FranckProfessor Susan D. Franck, Associate Professor of Law, recently published her article, Rationalizing Costs in Investment Treaty Arbitration, 88 Wash. U. L. Rev. 769 (2011), in the Washington University Law Review.

International investment and related disputes are on the rise, leading many parties to turn to arbitration. The costs of investment treaty arbitrations are arguably substantial. Prof. Franck’s article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggests a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification for those cost decisions. Awards typically lacked citation to legal authority and provided minimal rationale, and the justifications for cost decisions exhibited broad variation. Tribunals typically decided costs only in the final award; and as the amount investors claimed increased, tribunal costs also increased. Such a combination of variability and convergence can disrupt the value of arbitration for investors and states. In light of the data, but recognizing the need for additional research to replicate and expand upon the initial findings, this Prof. Franck recommends states consider implementing measures that encourage arbitrators to consider specific factors when making cost decisions, obligate investors to particularize their claimed damages at an early stage, and facilitate the use of other Alternative Dispute Resolution (ADR) strategies. Establishing such procedural safeguards can aid the legitimacy of a dispute resolution mechanism with critical implications for the international political economy.

You can find Prof. Franck’s article on SSRN here or at the Washington University website here.

Congratulations to Professor Franck.

Prof. Millon on Organized Labor

April 21, 2011 Leave a comment

David MillonProfessor David Millon, the J.B. Stombock Professor of Law, recently published his article, Keeping Hope Alive, 68 Wash. & Lee L. Rev. 369 (2011), in the Washington & Lee Law Review.

The short article is a review and discussion of Micah Jost’s article, Independent Contractors, Employees, and Entrepreneurialism Under the National Labor Relations Act: A Worker-by-Worker Approach68 Wash. & Lee L. Rev. 311 (2011). Prof. Millon discusses the main battleground over unions, the legal distinction between “employees” and “independent contractors.” The right to unionize under the National Labor Relations ACT is limited only to employees, but no clear, bright-line definition of employee has emerged. Prof. Millon praises Jost’s article, stating that it “explains this confused area of law clearly and thoroughly.” He then proceeds to agree with Jost’s conclusions and suggestions.

Congratulations again to Micah Jost and to Professor Millon.

Prof. Rendleman on Punitive Damages

April 14, 2011 Leave a comment

Doug RendlemanProfessor Doug Rendleman, Robert E. R. Huntley Professor of Law, had his article, Common Law Punitive Damages: Something for Everyone, 7 U. St. Thomas L. J. 1 (2009), published in the University of St. Thomas Law Journal. The article was part of Professor Rendleman’s keynote address for the school’s Exxon Valdez Revisited: Rights and Remedies symposium.

The article addresses some of the interesting features inherent in common law punitive damages, including: a civil court meting out quasi-criminal punishment; a sanction and punishment, imposed after mere civil procedure; a civil jury stretching imprecise instructions into Robin Hood justice; a private plaintiff receiving a windfall that exceeds any reasonable estimate of loss; and the Supreme Court wielding the discredited doctrine of substantive due process. Prof. Rendleman examines these features and the countervailing considerations, devoting more attention to substantive due process. He then turns to Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) offers a few conclusions.

Congratulations to Professor Rendleman.

Prof. MacDonnell on the Contraband Exception

April 13, 2011 Leave a comment

Timothy MacDonnellProfessor Timothy C. MacDonnell, Assistant Clinical Professor of Law and Director of the Black Lung Legal Clinic, recently had his article, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment41 U. Mem. L. Rev. 299 (2010), published in the University of Memphis Law Review.

In the article, Prof. MacDonnell discusses how courts have interpreted the Fourth Amendment as technology advanced and the government became capable of listening to and seeing into traditionally private places. Indeed, in Katz v. US, the Supreme Court changed from a test that asked whether there had been a physical invasion of an individual’s person, house, papers, or effects to one that asks whether the government invaded (physically or technologically) a place where an individual had a reasonable expectation of privacy. Courts have carved an exception to that rule: there is no expectation of privacy in contraband. The only articulated limitation to that exception is that the test or technique must only reveal the presence or absence of contraband.

The article examines the contraband exception, its potential ramifications, and at least one method of limiting its application. It begins by examining the history and development of the contraband exception. Next, Prof. MacDonnell describes how the Supreme Court created and refined the exception, expanding its application from airports, to the mail, to automobiles, and paving the way for its use in the home. Then, he discusses how federal and state courts have applied the contraband exception since Caballes in a variety of situations, such as traffic stops, mail inspections, and self-storage containers. Finally, Prof. MacDonnell examines those cases that have applied the exception to the home, where the greatest individual privacy exists. The article concludes with a discussion of two cases that have laid a foundation for limiting the contraband exception.

Congratulations to Professor MacDonnell.

Prof. Wilson on Conscience Protection

April 6, 2011 Leave a comment

Robin WilsonProfessor Robin Wilson, the Class of 1958 Law Alumni Professor of Law, recently published her article, Empowering Private Protection of Conscience, 9 Ave Maria L. Rev. 101 (2010), in the Ave Maria Law Review, as part of the school’s symposium, The Future of Rights of Conscience in Health Care: Legal and Ethical Perspectives.

In the article, Prof. Wilson discusses federal conscience protections for health care providers. Conscience protections allow health-care personnel to refuse to provide or assist with abortion, sterilization, and other procedures if doing so would violate their religious beliefs or moral convictions. While protections are in place, enforcement of and recourse for those protections are rather unclear. Prof. Wilson addresses the protections federal law affords and what recourse, if any, providers may have, both private and administratively.

The article first traces the history and development of federal conscience protections for health-care providers. It then examines whether the Church Amendment in particular creates a private right of action, ultimately concluding that it does not. Prof. Wilson then explores the difficulty objectors would face if the Executive Branch chooses not to enforce the federal conscience protections. Prof. Wilson ultimately finds little recourse for conscientious objectors given the broad discretion accorded to agencies charged with enforcing the law, and concludes that a private right of action may be necessary to provide meaningful conscience protections to individual providers.

Congratulations to Professor Wilson on this accomplishment.

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