University of Tennessee College of Law Legal Studies Research Paper Series最新文献

{"title":"Furthering the Fiduciary Metaphor: The Duty of Providers to the Payers of Medicare","authors":"Isaac D. Buck","doi":"10.15779/Z381Z89","DOIUrl":"https://doi.org/10.15779/Z381Z89","url":null,"abstract":"Five years and two near-death experiences later, the Patient Protection and Affordable Care Act of 2010 (ACA) has restructured the delivery of American health care. It has provided coverage to millions of Americans who previously did not have it, outlawed discrimination in the insurance marketplace, and armed the patient with consumer-based tools to streamline their care. Its positive impact is being seen throughout the country. But it can only go so far.Separate from the goal of providing access, the most daunting challenge facing American health care, and particularly, Medicare, is controlling expenditures and utilization in an era of unprecedented enrollment growth. Efforts to control expenditure and utilization have failed in the past, and starkly conflict with the dominant paradigm in American health care that sanctifies the autonomy and nearly unlimited discretion of the American provider. This paradigm often views attempts that seek cost-effectiveness as heavy-handed government intervention. But as Medicare’s enrollment swells from 52 million today to nearly 90 million by 2040, the cost and utilization problem will not abate with age. While the ACA’s solutions may help cut down on unnecessary and unwanted care and expand coverage, they cannot fully address the overtreatment problem due to a confluence of factors — namely, the often acute emergent situation and incomparable pain patients find themselves in, the imperfect agency relationship between patients and payers, and the intractable information asymmetry that exists within the enterprise. This challenge begs for creative legal and policy-based solutions that seek to maintain provider autonomy and patients’ freedom of choice, but also construct reasonable incentives and limitations to prod providers and Medicare beneficiaries into choosing more cost-effective treatment. This challenge is made all the more difficult by Medicare’s reimbursement structure, a regime that still largely rewards and incentivizes excess. Recognizing that dichotomy, this piece nods to previous scholarship that has suggested the importation of fiduciary principles into the provider-patient relationship, but builds on it by arguing for the inculcation of fiduciary principles into the largely unrecognized payer-provider relationship. Placing a duty of loyalty on the provider that is owed to the payers in the Medicare enterprise — American taxpayers — would introduce currently absent pressures on providers to limit excessive and expensive health care by opening the door to judicial remedies for the Medicare program. This new duty would further nuance the provider’s loyalties, reflecting other professionals’ multi-layered duties of loyalty. And finally, this move would not increase regulations on providers, nor would it rob them of their dearly protected autonomy, but would limit unreasonable health care costs and utilization where possible — something that, heretofore, Medicare has spectacularly failed to do.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126403809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Securitization of Aberrant Contract Receivables","authors":"Thomas E. Plank","doi":"10.2139/ssrn.2524587","DOIUrl":"https://doi.org/10.2139/ssrn.2524587","url":null,"abstract":"Originators of traditional receivables, such as automobile loans, use securitization and structured finance debt transactions to obtain financing at lower net costs than traditional secured financing. The typical securitization or structured finance debt transaction combines (i) a sale of receivables to a separate, bankruptcy remote, special purpose legal entity (an “SPE”) and (ii) a loan to the SPE secured by the receivables. This combination produces lower net financing costs because the SPE’s lender can obtain repayment of its loan from the receivables while avoiding the costs that the Bankruptcy Code imposes on direct secured lenders to originators that could become debtors in bankruptcy for reasons unrelated to the receivables. The viability of this financing technique, however, depends upon receivables that produce reliable cash flows with minimal reliance on an operating company. This article analyzes the reasons for the net costs savings of securitization and structured finance debt transactions and the structural features necessary to achieve those savings. This analysis provides a framework for assessing the feasibility of a securitization or structured finance debt transaction for any type of aberrant contract receivable.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129690991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Extraterritorial Application of U.S. Securities Fraud Prohibitions in an Increasingly Global Transactional World","authors":"Joan Macleod Heminway","doi":"10.2139/SSRN.2054135","DOIUrl":"https://doi.org/10.2139/SSRN.2054135","url":null,"abstract":"This draft working paper, prepared for a French academic forum entitled “American Law Today: Identity, Mutations, and Debate,” is a brief essay on the current and potential future extraterritorial reach of Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 adopted by the U.S. Securities and Exchange Commission under Section 10(b). The essay does three principal things. First, it summarizes the key antifraud rules in context. Next, it describes (in brief) the history and current state of the academic and political debate on the extraterritoriality of Section 10(b) and Rule 10b-5 (including commentary on the U.S. Supreme Court’s opinion in Morrison v. Nat’l Austl. Bank Ltd. and reactions to the recently released report of the Securities and Exchange Commission in compliance with Congress’s mandate under the Dodd-Frank Wall Street Reform and Consumer Protection Act). Finally, before briefly concluding, the essay suggests a way forward for Congress in light of the current state of the extraterritoriality debate.The essay has a very simple general premise: that Congress should clarify the extraterritorial reach of Section 10(b) and Rule 10b-5 and ground its rule firmly in applicable policy: namely, the protection of U.S. investors and markets.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131788682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Russia’s 'Orthodox' Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad","authors":"Robert C. Blitt","doi":"10.2139/SSRN.1725522","DOIUrl":"https://doi.org/10.2139/SSRN.1725522","url":null,"abstract":"The government of Russia and the Russian Orthodox Church (ROC) - the country’s predominant religious group - recently underwent back-to-back changes in each institution’s respective leadership. This coincidence of timing has afforded a unique opportunity to reexamine the status of constitutional secularism and church-state relations in the Russian Federation. In the short space of two years, the partnership of President Dmitri Medvedev and Patriarch Kirill has further entrenched a discriminatory three-tiered status system for religious groups and - perhaps more significantly - has generated multiple new channels of influence for the ROC in Russian social and political life, including handing the Church its long-coveted prizes of access to the public education system and the military. While these developments represent a significant blow to constitutional secularism in Russia, they do not tell the entire story. As the following article demonstrates, the ROC’s influence is increasingly evident beyond the realm of domestic policies. The Patriarch today enjoys the ear of Russia’s Foreign Ministry and plays a key role in both formulating and advancing Russian interests abroad. Consequently, the breakdown in the constitutional principle of secularism so evident in the domestic realm has spilled over into Russia’s foreign policy, leading to the bizarre reality whereby a secular state is advocating on behalf of Orthodoxy and traditional values abroad. By assessing the various points of cooperative overlap and commonality shared by the ROC and Russian government on this plane, this article posits that the practice of mutual reinforcement in foreign policy objectives as between the ROC and government of Russia not only undermines respect for the Russian constitution, but actually risks exacerbating already adverse domestic conditions related to freedom of expression and freedom of religion or belief, as well as destabilizing international consensus concerning universal human rights and related norms.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"243 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121875199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Responding to Welfare Privatization: New Tools for a New Age","authors":"W. Bach","doi":"10.2139/ssrn.1809047","DOIUrl":"https://doi.org/10.2139/ssrn.1809047","url":null,"abstract":"Privatization of the operation of public benefit programs in the wake of welfare reform has diminished the effectiveness of traditional approaches to advocacy. A case study from New York City of how private contractors succeeded in reducing welfare roles while imposing punitive policies on poor families offers a glimpse of possible new advocacy tools. Requiring contract-monitoring bodies that involve community members and advocates could help facilitate transparent contracting processes and reshape social welfare programs to serve clients.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130319487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Defending the NLRB: Improving the Agency’s Success in the Federal Courts of Appeal","authors":"Jeffrey M. Hirsch","doi":"10.25148/LAWREV.5.2.11","DOIUrl":"https://doi.org/10.25148/LAWREV.5.2.11","url":null,"abstract":"Commentators have made innumerable recommendations to improve the National Labor Relations Board’s administration of the National Labor Relations Act. Yet one subject that has been largely ignored in these discussions is the fact that no matter how good the administrative enforcement of the NLRA is, or could be, it will mean very little if the NLRB cannot defend its decisions in the courts of appeals. The stakes of this inquiry are high. Because the NLRB cannot enforce its own orders, any losing party can delay compliance with a Board order by seeking review before an appellate court. This delay itself can substantially undermine employees’ labor rights - particularly when a case involves representational issues, in which employees’ support for a union often diminishes as time passes. Yet the problems associated with delay are exacerbated if losing parties believe they have a good chance of winning before the courts. Although some parties may challenge a Board order no matter their chances, others may seriously weigh the costs and benefits of further litigation. For these parties, the prospect of reversing a Board order may lead to additional challenges, more delay, and ultimately an inability of employees to enjoy their labor rights. This article addresses this issue by proposing several reforms intended to improve the Board’s success in the courts of appeals. These reforms include attempting to improve the format and substance of NLRB decisions, increasing the emphasis on the standard of review, considering limited types of forum shopping, increasing the use of rulemaking, reducing delay, and requesting more injunctive relief. None of these strategies, if enacted, would be a silver bullet that would solve all of the difficulties that the Board faces in court. In the aggregate, however, they could improve the Board’s standing in the eyes of federal appellate courts, thereby improving the Board’s long-term success. Moreover, a renewed focus on the need to win before the courts of appeals could enhance the Board’s success in the short term by improving some of its individual decisions, thereby making them better candidates for court enforcement.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133185467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unbound by Theory and Naming: Survival Feminism and the Women of the South African Victoria Mxenge Housing and Development Association","authors":"Becky L. Jacobs","doi":"10.2139/ssrn.1816575","DOIUrl":"https://doi.org/10.2139/ssrn.1816575","url":null,"abstract":"The emergence of a uniquely African formulation of feminism is one of the most energizing developments in feminist theory and discourse in recent history. As African women confront unprecedented economic and political challenges, they also are questioning, and, in some instances, redefining, individual and societal orthodoxies of gender and family roles. This Article will examine the discourse on African feminism and will consider the practical utility of feminist theory in the context of one extraordinary group of South African women, the members of the Victoria Mxenge Housing and Development Association. The discussion will review the historical context in which the Association evolved, will reflect upon a few of the impediments that its members confronted, and will contemplate the challenges and possibilities that these women continue to encounter.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116616701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unethical Protection? Model Rule 1.8(h) and Plan Releases of Professional Liability","authors":"George W. Kuney","doi":"10.2139/SSRN.1518931","DOIUrl":"https://doi.org/10.2139/SSRN.1518931","url":null,"abstract":"The American Bar Association’s Model Rules of Professional Conduct address the propriety of attorneys obtaining releases from their clients of either past claims or future claims against themselves. Under the applicable Model Rule, both types of releases require the involvement, or the opportunity for involvement, of independent counsel to review and advise the client on the issue. Releases in chapter 11 plans typically cover insiders, members of the creditors’ committee, and the debtor’s and committee’s counsel. Few courts or disciplinary bodies of the various state bars have addressed the ethical issues that arise when counsel insert into a plan of reorganization a lengthy provision that releases counsel from all past claims and all future claims arising out of the chapter 11 case or the plan of reorganization. This article examines the interaction of Model Rule 1.8(h) and plan release practice, concludes there is a conflict between practice and the Model Rule, and suggests a solution: making inclusion of a third-party release covering estate-compensated counsel an issue to be negotiated, reviewed, and approved as part of the process of retention of professionals early in the case, before parties rely on the availability of a release when rendering services. If the proper scope of a permissible release of professional liability is confronted early in the chapter 11 process, the Model Rule (or, more accurately, its locally-enacted analogue) can be complied with, and the effect of the release’s availability or non-availability on fee structures and other elements of compensation can be made explicit.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126464981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Post-Apartheid City in the New South Africa: A Constitutional 'Triomf'?","authors":"Becky L. Jacobs","doi":"10.58948/2331-3536.1087","DOIUrl":"https://doi.org/10.58948/2331-3536.1087","url":null,"abstract":"In her mercilessly satiric novel Triomf, Marlene van Niekerk recounts the oppressive daily lives of an impoverished family of White Afrikaners on the eve of South Africa's first democratic elections. Imbued with Afrikaner history and politics, the novel reveals the ironically tragic effect of Apartheid on the White underclass and ravages the myth of Afrikaner supremacy. Triomf's intricate allegorical narrative brutally exposes the failure of the ideology of White superiority. It also may serve as a cautionary tale for the post-Apartheid South Africa, a reminder of the dangers inherent in creating, continually reinforcing, and sustaining societal myths and expectations of redress and redemption. Based upon her research with Jenny Whittal, Professor Jacobs explores van Niekerk's fictional imagery and its metonymy in the context of the Apartheid Era South Africa and of the new South Africa's Constitutional promise of land reform in the post-Apartheid city.","PeriodicalId":305370,"journal":{"name":"University of Tennessee College of Law Legal Studies Research Paper Series","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126271888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}