Cornell Journal of Law and Public Policy最新文献

{"title":"Stigmatized silence: the exclusion of HIV and AIDS sufferers from the \"Obamacare\" legal landscape.","authors":"Ashley N Southerland","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The continued presence and growing rates of individuals infected with human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) in the United States has come to reflect an epidemic of significant proportion. Unfortunately, federal legislation has been eerily silent regarding the establishment of protections against health status-based discrimination for asymptomatic HIV and AIDS sufferers. Congress has done little to change this reality, despite the institution of major healthcare system and insurance reform by the Obama Administration in 2010. This Note argues that \"Obamacare\" and the two laws that define it—the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010—fail to address asymptomatic HIV and AIDS infection as a significant source of health status-based insurance discrimination. As a result, these individuals continue to be ignored, subject to the ambiguities of \"disability\"- based legislation, and relegated to the status of a legally invisible class.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"20 3","pages":"833-54"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759472","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":"Mandatory Labor Arbitration of Statutory Claims, and the Future of Fair Employment: 14 Penn Plaza V. Pyett","authors":"D. L. Gregory, E. McNamara","doi":"10.2139/SSRN.1433877","DOIUrl":"https://doi.org/10.2139/SSRN.1433877","url":null,"abstract":"By its 5-4 sharply divided decision in 14 Penn Plaza v. Pyett, 556 U.S. (April 1, 2009), the United States Supreme Court dramatically endorsed mandatory labor arbitration, rather than external litigation, to resolve labor union-represented employees’ statutory claims of unlawful age-based employment discrimination. The Court summarily isolated and trivialized as jurisprudentially obsolete, but did not deem it necessary to formally overrule, 35 years of well-established precedent that had protected the employee’s right to litigate de novo statutory claims of unlawful employment discrimination, without suffering any res judicata or collateral estoppel effects from a prior adverse arbitration decision. The Court substantially clarified, and perhaps simplified, what had become an increasingly complex and potentially inconsistent panorama of decisions as to whether labor union-represented employees can be mandated to arbitrate, and thus be foreclosed from litigating de novo, statutory claims, most frequently and most classically, those alleging unlawful employment discrimination by the employer. By its controversial activist methodology, the political, ideological Court ran roughshod over stare decisis principles. A host of questions, ramifications, and unintended consequences could well transform the dynamics of arbitration well beyond the present contours of labor-union represented employment environments. This article will critically assess the salient foreseeable consequences and likely ramifications of the Pyett decision. On the eve of a half-century of Supreme Court enthusiasm for labor arbitration, grounded in the landmark Steelworkers Trilogy in 1960, the Pyett decision perhaps reached the correct result, favoring a single, globalized, omnibus arbitration, rather than second bites at the apple in serial litigation. But, the Court engaged in deeply problematic, severely truncated reasoning to reach this result. Unfortunately, Pyett is not the rare exception. The phenomenon of the Court reaching the correct result, but through badly fractured and spasmodic reasoning, while not the norm, occurs with some frequency. Pragmatically, a sound functional result from a problematic and jagged opinion undeniably is markedly superior to an elegant theory yielding an obsolete, wrong result. The great practical utility of these quintessentially Lincolnian principles is palpable in labor and employment law. Pyett is certainly not the first, and will not be the last, decision of the Court that, while not elegantly grounded in sophisticated jurisprudential metaphysics, may nevertheless work well and yield just and fair results for employees, employers, and unions who favor a single, integrated arbitration forum for the resolution of all contractual and statutory claims. Meanwhile, those employees, employers, and unions wishing to retain independent judicial recourse for litigating statutory claims are not precluded from doing so, and are left unaffected by, the","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"19 1","pages":"429-458"},"PeriodicalIF":0.0,"publicationDate":"2009-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68181031","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":"Of Atkins and men: deviations from clinical definitions of mental retardation in death penalty cases.","authors":"John H Blume,&nbsp;Sheri Lynn Johnson,&nbsp;Christopher Seeds","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins's reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings, and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"18 3","pages":"689-733"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28076112","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 social costs of dangerous products: an empirical investigation.","authors":"Sidney Shapiro,&nbsp;Ruth Ruttenberg,&nbsp;Paul Leigh","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Defective consumer products impose significant costs on consumers and third parties when they cause fatalities and injuries. This Article develops a novel approach to measuring the true extent of such costs, which may not be accurately captured under current methods of estimating the cost of dangerous products. Current analysis rests on a narrowly defined set of costs, excluding certain types of costs. The cost-of-injury estimates utilized in this Article address this omission by quantifying and incorporating these costs to provide a more complete picture of the true impact of defective consumer products. The new estimates help to gauge the true value of the civil liability system.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"18 3","pages":"775-829"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28783453","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":"Toward a Critical Race Realism","authors":"G. Parks","doi":"10.2139/SSRN.1248502","DOIUrl":"https://doi.org/10.2139/SSRN.1248502","url":null,"abstract":"Critical Race Theory (CRT) is one of the youngest progeny of Legal Realism, but CRTs methodological approach has often failed to draw heavily from two put forth by the realists - the intersection of law & social science and law & public policy. There is a long intellectual history winding its way from Legal Realism to Law-Science-Policy, to Yale's Divisional Studies Program and Law and Society, to Critical Legal Studies and CRT. CRT could put forth stronger arguments by employing social science research and methodologies. This is nothing new, as Charles Hamilton Houston is the predecessor to Critical Race Realism (CRR). And current movements such as the New Legal Realism Project, Behavioral Realism, and Empirical Legal Scholarship, help situate CRR.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"17 1","pages":"683-746"},"PeriodicalIF":0.0,"publicationDate":"2008-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68153295","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":"New York Medicaid: never can say goodbye.","authors":"Joseph Fastiggi","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"16 3","pages":"581-615"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27477688","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":"Coke and smack at the drugstore: harm reductive drug legalization: an alternative to a criminalization society.","authors":"Noah Mamber","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"15 3","pages":"619-64"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26798267","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":"Health, capability, and justice: toward a new paradigm of health ethics, policy and law.","authors":"Jennifer Prah Ruger","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"15 2","pages":"403-82"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26415545","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":"Gonzales v. Raich: federalism as a casualty of the war on drugs.","authors":"Ilya Somin","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"15 3","pages":"507-50"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26798266","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":"Clinical case management: a strategy to coordinate detection, reporting, and prosecution of elder abuse.","authors":"Arlene D Luu,&nbsp;Bryan A Liang","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Despite civil and criminal sanctions, elder abuse is a prevalent, underreported, and underprosecuted event in the United States. Traditional reporting legislation and common law remedies have had minimal effect on the incidence and prevalence of elder abuse. The epidemic nature of elder abuse is projected to increase exponentially as the elderly population grows disproportionately over the next several decades. The fragmented system of detecting, reporting, and prosecuting this abuse across a wide range of medical and legal settings creates a poor structure to effectively allow a potentially abused patient to have his/her abuse circumstance communicated to the relevant parties to protect the patient, have his/her situation reported and investigated, and, if necessary, have the perpetrator brought to justice. Emergency rooms and other facilities where elders present for care should be staffed by clinically trained persons who have familiarity interacting with patients and providers across settings of care, and who are trained to detect and report abuse. Nursing case managers fill this role well because they are able to coordinate efforts among acute and long-term care facilities while also being able to supply patients with legal and clinical information about elder abuse. In addition they may support prosecution efforts through their clinical observations and expertise. Hence, clinical case managers are able to coordinate efforts lacking in the current system to effectively evaluate, report, protect, and arrange for relevant services for the patient. Through clinical and special training in elder abuse, nursing case managers can provide support to prosecution efforts against the perpetrators of this most egregious crime.</p>","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"15 1","pages":"165-96"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26141440","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}