The American University law review最新文献

{"title":"De Facto Parent and Nonparent Child Support Orders","authors":"Jeffrey A. Parness, M. Timko","doi":"10.31228/osf.io/rpx7w","DOIUrl":"https://doi.org/10.31228/osf.io/rpx7w","url":null,"abstract":"For ever so long U.S. state laws have recognized the federal constitutional right to “care, custody and control” of a child vested in the opposite sex married couple who bore the child of sex or in any formal adoptive parent. More recently this parental right has also been recognized for the opposite sex unmarried couple who bore the child of sex. And even more recently, U.S. state laws have recognized this parental right for some who did not engage in the sex leading to birth and for some where the children were born without sex. State laws have also increasingly limited this childcare right by allowing nonparents to secure court-ordered childcare over the objections of established legal parents, whether by newly recognizing these nonparents as de facto parents or as third parties with childcare standing. While state childcare laws have evolved significantly as family structures, the availability of reliable and inexpensive genetic testing, and assisted reproduction techniques have changed, the laws on parental and nonparental child support have not changed much. This article is the first to explore actual and potential child support arising from the new childcare opportunities for both de facto parents and nonparents.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"69 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2018-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86161757","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":"Two Sided Internet Markets and the Need to Assess Both Upstream and Downstream Impacts","authors":"R. Frieden","doi":"10.2139/SSRN.3139746","DOIUrl":"https://doi.org/10.2139/SSRN.3139746","url":null,"abstract":"This paper will explain how many information, communications and entertainment (“ICE”) markets support companies serving both downstream consumers, but also upstream ventures that access consumers primarily through an intermediary. Operating in a double-sided marketplace, intermediaries can achieve fast growth as they serve diverse geographical markets without having to erect or lease the telecommunications and information processing infrastructure needed to switch, route and deliver content to end users. ICE intermediaries also can expand quickly by accruing positive networking externalities as consumer welfare and incentives to subscribe increase. ICE platform operators have thrived in a largely deregulated marketplace with prospective regulation largely preempted by the view that consumers have benefitted without the need for government oversight. However, the court of public opinion may have begun to deviate from the view that platform operators present a universally positive value proposition. A proper assessment of consumer welfare balances downstream enhancements through convenience, cost savings, free-rider opportunities and innovation with upstream costs including the value of uncompensated consumer data collection, the viability and competitiveness of ICE ventures, e.g., newspapers, as well as the earnings, employability and stability of employees operating within the “gig economy.” The paper determines that many of the platform intermediaries most likely to harm consumers and competition have benefitted by a reluctance of government agencies to examine upstream impacts. Such reticence stems from legitimate concerns about over-reach, mission creep and jurisdiction. It also may represent prudent concerns that government not interfere and handicap successful ventures simply because their marketplace victories also trigger defeats. An emphasis on consumer impact steers agencies and reviewing courts toward a downstream emphasis, because consumers reside on that side of the double-sided market. On the other hand, the paper asserts that upside market assessments will become essential for a complete and statutory-compliant evidentiary record and thorough analysis. The paper will examine United States v. American Express Company, 838 F.3d 179 (2d Cir. 2016)(appeal pending), where an appellate court assessed both sides of a credit card issuer platform to determine the combined effects on consumers when an issuer tried to impose a contractual prohibition on merchants “steering” consumers to an alternative credit card offering lower processing fees to merchants. The lower court rejected the language as potentially raising consumer costs, without considering whether such terms might actually facilitate consumer benefits such as financial rebates. The paper concludes that double-sided markets require assessments of potential competitive and consumer harm occurring on both sides.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"32 1","pages":"713"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82508977","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 Fallacy of Choice: the Destructive Effect of School Vouchers on Children With Disabilities.","authors":"Ian Farrell,&nbsp;Chelsea Marx","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article addresses the impact of school voucher programs on students with disabilities. We show that for children with disabilities, the price of admission into so-called \"school choice\" programs is so high that it is effectively no real\u0000choice at all. School voucher programs require students with disabilities to sign away their robust federal rights and protections in the public school system. Under the Individuals with Disabilities Education Act (IDEA)--the preeminent\u0000legislative safeguard for students with disabilities--these rights include the right to a \"free and appropriate public education\" delivered through an \"individualized education plan.\" By giving up these protections, children with disabilities are left at the mercy of private schools that have no legal obligation to provide them with an appropriate education, and, in the vast majority of cases, are not legally prohibited from discriminating against them on the basis of their disability. We argue that school voucher programs--including a proposed federal voucher program--put the education of students with disabilities back decades, and likely constitute a violation of the Equal Protection Clause of the U.S. Constitution.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"67 6","pages":"1797-909"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36479436","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":"Inadequate Accessibility: Why Uber Should Be a Public Accommodation Under the Americans With Disabilities Act.","authors":"Elizabeth A Mapelli","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Comment will focus on Uber and its obligations under the Americans with Disabilities Act (ADA). While it may seem logical that Uber should adhere to the same ADA regulations as taxis, the relevant ADA provision only applies to private entities that are primarily engaged in the business of transporting people. To avoid these regulations, Uber asserts that it is primarily a technology company, rather than primarily a transportation company. However, the more expansive approach, consistent with the ADA's purpose of eliminating discrimination against persons with disabilities, is to classify Uber's services as public accommodations. While the ADA's public accommodation provision governs physical spaces such as restaurants, shopping centers, and offices, some jurisdictions have recently decided that web-based entities and services are public accommodations. Thus, even if a court were to accept Uber's claim that it is primarily a technology company rather than a transportation company, Uber would still be required to adhere to the ADA's public accommodation provision. This Comment presents and analyzes three rationales for defining Uber as a public accommodation under the ADA: (1) web-based activities are distinct public accommodations, (2) the physical vehicles that Uber operates are places of public accommodation, and (3) Uber is a \"travel service\" or \"other service establishment\" as defined in the ADA.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"67 6","pages":"1947-87"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36565813","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 demise of drug design litigation: death by federal preemption.","authors":"Aaron D Twerski","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>For over half a century, courts and commentators have disagreed as to the standards governing liability for drug design cases. In the last several years, the United States Supreme Court decided two cases that will have a profound effect on whether drug design defect cases, in general, are federally preempted. In PLIVA v. Mensing and Mutual Pharmaceutical Co. v. Bartlett, the Court preempted product liability actions for failure to warn and design defect against the manufacturers of generic drugs that met the FDA standard for the brand name drug. In these cases, the Court made wide-ranging statements that are applicable to brand name drugs as well. This Essay finds the Bartlett Court erred in having read New Hampshire law too narrowly. At the same time, the Court's reasoning has opened a debate as to the scope of federal preemption for brand name drugs. This Essay argues that the sweeping language in these two cases leads to the conclusion that common law drug design cases involving brand name drugs will fall prey to federal preemption.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"68 1","pages":"281-304"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36700371","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":"Beyond Balancing: Rethinking the Law of Embryo Disposition.","authors":"Mary Ziegler","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Actress Sofia Vergara became the center of a new round of conflict about the disposition of embryos created using assisted reproductive technologies (ART): the conflict about the difference that abortion jurisprudence should make to case law on ART. This Article argues that the history of abortion jurisprudence sheds light on the problems with the leading approach to embryo-disposition cases like Vergara's. In many instances, courts first look for a clear, binding agreement and look to a balancing analysis if no such agreement exists. As this Article shows, this is not the first time that courts have applied a balancing analysis to deal with clashing rights to seek and avoid genetic parenthood. The Article explores the history of two balancing approaches that have played a pivotal role in abortion law. These approaches have led to inconsistent results and cater to the prejudices of judges who are asked to weigh the relative merits of individual parties' views on reproduction. This Article recommends that states adopt legislation detailing the requirements of an enforceable embryo disposition similar to the Uniform Premarital and Marital Agreements Act (UPMAA). In the embryo-disposition context, states should require parties to disclose legal rights and responsibilities rather than only finances. These disclosures should cover the preservation, implantation, or destruction of the embryos and the financial and legal responsibility for any resulting child. States should enforce an embryo-disposition agreement if it is voluntary, if the parties had counsel or the opportunity to access counsel, and if the parties had a full disclosure of the constitutional and common law rights implicated by the agreement.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"68 2","pages":"515-67"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36919792","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":"Little Things and Big Challenges: Information Privacy and the Internet of Things","authors":"Hillary Brill, Scott Jones","doi":"10.2139/SSRN.3188958","DOIUrl":"https://doi.org/10.2139/SSRN.3188958","url":null,"abstract":"IntroductionThe Internet of Things (IoT) is part of our lives in countless ways- some are welcome and intentional, such as trackable fitness devices, home security alert systems, or cars that can be unlocked and started remotely; others are unintentional and may cause concern to consumers, such as connected toys that can listen to our kids, or technologies capable of tracking our whereabouts or our shopping habits without our knowledge. The rapid growth of the IoT has prompted incredible technological advances along with thorny regulatory issues, specifically in the area of information privacy. Traditional regulators of privacy, specifically the Federal Trade Commission (FTC), have stretched to apply traditional tools to regulate unprecedented technological advances and the privacy challenges they bring. An analysis of the latest FTC cases and outcomes reveals an independent agency retooling investigative and enforcement methods and priorities to establish new expectations for how fair information practices and principles will be applied to new technologies.The FTC, like the technological advances it has stretched to keep pace with, has been increasingly progressive in its recent decision-making terminology. This Article uses recent, seminal FTC cases and outcomes to demonstrate how the FTC has developed a new information privacy framework, most recently expressed as the concept of \"unfair tracking,\" by modifying traditional legal concepts. The FTC has significantly expanded its role as the primary reviewer of information privacy matters raised by the IoT, while attempting to balance a philosophy not to impede the advance of the technology comprising the IoT. This Article reviews recent FTC efforts to regulate the IoT and provides critical commentary on how the FTc might proceed.To best understand the genesis of recent FTC actions on IoT data collection, Part i describes what makes up the ioT, how pervasive the ioT has become in our lives and, perhaps most importantly, how it will continue to innovate at a rapid pace. Parts II and III of this Article describe some unprecedented benefits and unprecedented challenges confronting regulators of information privacy in today's IoT age, including how to protect individual privacy rights without undermining innovation and the promise the connected world of the IoT brings.Part IV provides an in-depth critical review of four key FTC cases attempting to strike this sort of balance: In re Nomi Technologies, Inc.,1 United States v. InMobi Pte Ltd..,2 In re Turn, Inc.,5 and FTC v. VlZIOi Initially, the FTC applied its traditional section 5 \"deception\" jurisprudence in a novel way to advance traditional notions of privacy, but it has recently transitioned to a new paradigm in the form of a cause of action for \"unfair tracking,\" starting with VIZIO. However, this Article concludes that this new standard could prove either too anemic or, alternatively, overbroad, without proper shepherding by the FTC. It is only ","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"3 1","pages":"1183"},"PeriodicalIF":0.0,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82046580","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":"A Different Class of Care: the Benefits Crisis and Low-Wage Workers.","authors":"Trina Jones","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage workers due to (1) concerns about costs, (2) a surplus of low-wage workers in the labor market, (3) negative perceptions of the skill of low-wage workers and the value of low-wage work, (4) other class-based stereotypes and biases, and (5) structural impediments in some low-wage jobs. Given the decline of unions and limited legislative action to date, the Article maintains that low-wage workers are in a \"different class of care\" with little hope for meaningful change on the horizon.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"66 3","pages":"691-760"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34761854","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":"\"No Ordinary Lawsuit\": Climate Change, Due Process, and the Public Trust Doctrine.","authors":"Michael C Blumm,&nbsp;Mary Christina Wood","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government's fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of due process and enforceable through the Constitution’s due process clause. At trial, if the youth plaintiffs are able to prove that for decades the government willfully disregarded information about the potential catastrophic effects of GHG pollution, or abdicated its public trust duties, the decision could be transformative in global efforts to shift to an energy policy that does not threaten young people and future generations. This Article examines Juliana, its context as part of a worldwide campaign of \"atmospheric trust\" litigation, its path-breaking reasoning, and its implications in the United States and abroad. The case has been described as \"the case of the century\" and, because of the harm it aims to address and the fundamental rights approach endorsed by the court, it just may be that. Pending the forthcoming trial and almost certain appeals, we think the case is, as the trial judge accurately recognized, \"no ordinary lawsuit.\"</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"67 1","pages":"1-87"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36481600","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":"Using Data Exclusivity Grants to Incentivize Cumulative Innovation of Biologics' Manufacturing Processes.","authors":"Eric Lawrence Levi","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The pharmaceutical market is divided into two types of compounds: small-molecule chemical compounds and large-molecule biologics. Due to biologics’\u0000molecular sizes and the current scientific state of biologics manufacturing, manufacturing facilities and processes require frequent reassessment to ensure\u0000production of safe, pure, and potent therapeutics. Manufacturers utilize patent and drug regulatory law to protect their investments and simultaneously signal where innovation and investment are lacking. The current four- and twelve-year regimented structures of the Biologics Price, Competition, and Innovation Act do not keep pace with scientific development; biologics manufacturing processes drift with time, and if a manufacturer can obtain a higher degree of process control, then it should not feel restricted to wait until their exclusivity period lapses. Currently, the FDA rarely grants market exclusivity privileges for manufacturing process improvements alone; hence, manufacturing processes--or at least large portions thereof--are typically withheld as trade secrets or strategically claimed within companion composition claims. As a result, significant opportunity exists in regulatory framework to incentivize the research and development of biologics manufacturing processes. By creating a one- to four-year data exclusivity extension opportunity, manufacturers will feel more comfortable reinvesting their returns on investment towards manufacturing efficiency, and manufacturers can capitalize on the complex-molecule nature of their biologic.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"66 3","pages":"911-70"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34761273","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}