The American University law review最新文献

{"title":"Fear-Based Provocation","authors":"michal buchhandler-raphael","doi":"10.2139/ssrn.3046728","DOIUrl":"https://doi.org/10.2139/ssrn.3046728","url":null,"abstract":"","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"43 1","pages":"1719"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89196982","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":"Reconceptualizing Managerial Judges","authors":"Steven Baicker-McKee","doi":"10.2139/SSRN.3241515","DOIUrl":"https://doi.org/10.2139/SSRN.3241515","url":null,"abstract":"INTRODUCTIONFederal litigation operates today in a changed environment. In particular, the disappearance of the trial from federal court is well documented.1 In 1938, when courts first began operating under the Federal Rules of Civil Procedure, about eighteen percent of cases went to trial.2 The percentage fluctuated thereafter, but trended downward over the years, falling to the eleven to twelve percent range during the late 1960s and '70s.3 By 1984, it had decreased to about six percent.4 Today, just over one percent of cases go to trial.5This precipitous decline in trials has been the focus of numerous articles.6 Coercion by judges to settle cases on their dockets and the cost of litigation in general, or discovery in particular, are potential culprits behind this trend.7 Regardless of the cause of the decline in trials, however, the consequence is the same: if judges are to have a meaningful role in advancing the \"just, speedy, and inexpensive\" determination of matters before them, they cannot primarily play their part in a black robe ruling on evidentiary objections at trial. Rather, the role of judges must adapt to the new litigation climate and must focus on the pretrial process.The Federal Rules of Civil Procedure (\"Rules\") were conceived as one unified set of rules flexible enough to govern cases of all sizes and variations in complexity.8 Discovery illustrates this point nicely. Discovery is scalable-capable of being expanded for large complex cases and shrunk for small, simple ones.9 Because discovery must be tailored to fit the particulars of each case, it is one phase of litigation where the debate about active judges crystalizes: do the parties make the alterations themselves, or does the judge fashion the process?10 This Article will use discovery to explore the issues surrounding the evolving role of judges throughout the pretrial proceedings.Although the Rules authorize the judge to \"right-size\" discovery in the initial case management order, much of the scaling is typically delegated to the parties in the first instance, with the judge engaging only upon request.11 In our adversarial system, however, cooperation among the parties on how to configure discovery, without the ongoing monitoring and assistance of the judge, is simply not realistic in many cases. As a starting point, the parties typically have diametrically opposite and mutually exclusive objectives in the litigation. Furthermore, the asymmetries between the parties often make it difficult to find common ground on even procedural issues; one party will often have more electronically stored information than the other, will have more resources to devote to discovery, or will experience disproportionately greater advantage or disadvantage from delay.12 Indeed, discovery has been compared to nuclear war.13 It should not be surprising then that these asymmetries in resources and strategy lead adversaries to seek tactical advantages in the pretrial process rather than setti","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"1 1","pages":"353-397"},"PeriodicalIF":0.0,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88596293","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 Political Question Doctrines","authors":"John C. Harrison","doi":"10.2139/SSRN.2667634","DOIUrl":"https://doi.org/10.2139/SSRN.2667634","url":null,"abstract":"Much that is said about the political question doctrine is wrong. Commentators, lower courts, and sometimes the Supreme Court in its dicta err about the holding, reasoning, and underlying rationale of the Court’s cases that have applied it. The doctrine as the Supreme Court has developed it in those cases is not a limit on the subject matter jurisdiction of the federal courts. It is, however, a limit on the judicial power in its relations with political power. The doctrine has two branches. In one, courts treat as conclusive certain decisions by political actors that apply legal principles to particular facts. The leading example is recognition of states and governments, as to which the courts are bound by non-judicial decisions. In the other branch, the mandatory remedies that courts may give are limited in the extent to which they may direct political actors with respect to highly sensitive discretionary decisions, mainly those involving military and security matters. The doctrine’s rationale is that in some unusual circumstances the law commits final decision of a legal question to a non-judicial decision maker, as with Senate impeachment trials, and that the distinction between judicial and political power implies some limits on the extent to which the courts can command the exercise of the latter. Some Justices have identified substantive legal rules that under certain circumstances are not susceptible of judicial enforcement because such enforcement would require the courts to make political judgments, but the Court has not decided any case on that basis. The doctrine has in the past been broader than it is today. In some earlier cases, the Court found that the vindication of certain interests connected to political sovereignty was beyond judicial power, and the limits on directive remedies were tighter in the past than they are now. A substantial number of lower court decisions have seriously misunderstood the doctrine by treating it as a limit on subject matter jurisdiction. In the name of the political question doctrine, lower courts have refused to reach the merits of claims, especially damages claims against executive officers and government contractors related to national-security decisions, on grounds that have no foundation in the Court's doctrine or Article III.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"5 1","pages":"457"},"PeriodicalIF":0.0,"publicationDate":"2015-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78662980","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 Affordable Care Act, remedy, and litigation reform.","authors":"Brendan S Maher","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Patient Protection and Affordable Care Act of 2010 (ACA) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is a question largely unexamined by scholars. Courts everywhere, including the U.S. Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute's functional predecessor, the Employee Retirement Income Security Act of 1974 (ERISA), converted a protective statute into a uniquely effective piece of federal litigation reform. Ultimately, it considers whether the ACA--which incorporates, modifies, and rejects ERISA in several notable ways--will experience a similar fate.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"63 3","pages":"649-714"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32763250","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":"Speak Now or Hold Your Peace: Prearbitration Express Waivers of Evident-Partiality Challenges","authors":"Edward C. Dawson","doi":"10.2139/SSRN.2308964","DOIUrl":"https://doi.org/10.2139/SSRN.2308964","url":null,"abstract":"This article proposes that parties and arbitrators should use, and courts should enforce, express prearbitration waivers of certain evident-partiality challenges. Such waivers would allow parties to avoid uncertainty and expense caused by the current widely recognized disarray in the doctrine of evident partiality. While courts and scholars wrestle with trying to define and apply evident partiality doctrine, the solution proposed by this article allows parties to consensually avoid costly post-award litigation through pre-arbitration agreements to waive certain judicial challenges based on claims that the arbitrator displayed evident partiality. Adopting and enforcing express evident-partiality waivers is both practically attractive, and theoretically consistent with arbitration’s fundamental policies of resolving disputes based on the parties’ consent and allowing the parties to choose for themselves the most efficient ways to resolve their dispute, policies reinforced by recent Supreme Court opinions affirming the primacy of parties’ agreements in other areas of arbitration law.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"2016 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86308464","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":"FTC v. LabMD: FTC Jurisdiction Over Information Privacy Is 'Plausible,' but How Far Can It Go?","authors":"Peter S. Frechette","doi":"10.2139/SSRN.2262801","DOIUrl":"https://doi.org/10.2139/SSRN.2262801","url":null,"abstract":"The Federal Trade Commission (FTC) plays a large role in the cybersecurity world by enforcing specific statutes, such as HIPPA, COPPA, and FCRA, and, more generally, utilizing its authority under the Federal Trade Commission Act to penalize companies that allow data breaches. Recently, however, businesses have begun to push back, contesting the FTC’s authority to police information security. In FTC v. LabMD, Inc., a company under FTC investigation for an alleged data breach challenged the FTC’s ability to issue an administrative subpoena. LabMD indirectly disputed the FTC’s role in information security and its use of the unfairness category of the FTC Act as a basis of enforcement in data breach cases. The district court ultimately found that the FTC made a plausible case for its authority, but based its holding on the weight of precedent surrounding the FTC’s general use of the FTC Act in information security cases. Thus, the FTC’s reliance on the FTC Act is currently permitted, but could be challenged in the future. LabMD’s challenge of the FTC’s authority was significant however, because there is no legislative or executive action on privacy, so the FTC’s guidance, best practices, and enforcement set the de facto “privacy law.” As the FTC casts an increasingly wider net with or without congressional or executive action on data security, the future of the FTC Act’s scope in this area is uncertain.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"46 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2013-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84710165","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":"To Read Or Not to Read: Privacy within Social Networks, the Entitlement of Employees to a Virtual Private Zone, and the Balloon Theory","authors":"S. Yanisky-Ravid","doi":"10.2139/SSRN.2231694","DOIUrl":"https://doi.org/10.2139/SSRN.2231694","url":null,"abstract":"This paper addresses the question of whether employees should have a right to privacy within the virtual sphere of their workplaces, both at the workplace and while using employer-owned property, such as computers and networks. I conclude that there are strong justifications for a paradigm in which a sphere of privacy would be delineated within the virtual workplace, providing employees protection from employer intrusiveness. In other words, my main claim is that employees should have a “private zone” within the employer wired/digital/virtual premises, even when using corporate network tools or accounts (i.e. Internet accounts) and even during working hours. The reasonable expectation of privacy test implemented by the public sector, when applied within a modern virtual workplace realm, (almost) completely eliminates employees’ privacy rights. The same result of drained privacy rights has been diagnosed in the private sector by Professor Christine Jolls, who found that non-governmental workers overwhelmingly lose their rights when courts apply a test that examines explicit or implicit consent (all employees “agree” to waive the right to privacy). The outcome is that employees (almost) totally lost their privacy rights within the virtual spheres of the workplaces. Furthermore, the article argues that U.S. legal realm, stemming from court decisions, which eventually distinguish between privacy within tangible premises of the workplace versus virtual spheres, should be reconsidered and refined. The traditional test as set forth by the Supreme Court in its 1987 O’Connor v. Ortega decision, recognizing that employees’ tangible workplaces (such as a desk or cubicle or office) in a public office may be deemed as private space, should be applied to today’s virtual workplaces, extending the law so as to integrate it with the realities of the digital era. The employee expectation test as well as other contract and tort theories likewise should be either replaced or adjusted to this notion of virtual workplace privacy zones. Securing a private zone to U.S. employees, a concept adopted by several other legal regimes, is justified by a bundle of psychological theories that can be concisely described as the “balloon theory,” describing the importance of a private sphere that constantly and permanently surrounds the persona wherever one goes, including within the public domain and digital spheres. Studies have shown that providing private zones fosters a sense of responsibility and accountability and, consequently, improves employee productivity. This theory is consistent with court decisions outside the US (i.e. the Israeli Isakov case). Accordingly, I conclude that we should reconsider these tests in order to secure a threshold of a Private Zone within the virtual workplace. A new policy may implement new tests or make use of existing tools, such as the “Least Invasive Mean” (the Proportionality Analysis).","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"16 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2013-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79179176","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":"Don't let go of the rope: reducing readmissions by recognizing hospitals' fiduciary duties to their discharged patients.","authors":"Thomas L Hafemeister,&nbsp;Joshua Hinckley Porter","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In the early years of the twenty-first century, it was widely speculated that massive, multi-purpose hospitals were becoming the \"dinosaurs\" of health care, to be largely replaced by community-based clinics providing specialty services on an outpatient basis. Hospitals, however, have roared back to life, in part by reworking their business model. There has been a wave of consolidations and acquisitions (including acquisitions of community-based clinics), with deals valued at $7.9 billion in 2011, the most in a decade, and the number of deals increasing another 18% in 2012. The costs of hospital care are enormous, with 31.5% ($851 billion) of the total health expenditures in the United States in 2011 devoted to these services. Hospitals are (1) placing growing emphasis on increasing revenue and decreasing costs; (2) engaging in pervasive marketing campaigns encouraging patients to view hospitals as an all-purpose care provider; (3) geographically targeting the expansion of their services to \"capture\" well-insured patients, while placing greater pressure on patients to pay for the services delivered; (4) increasing their size, wealth, and clout, with two-thirds of hospitals undertaking renovations or additional construction and smaller hospitals being squeezed out, and (5) expanding their use of hospital-employed physicians, rather than relying on community-based physicians with hospital privileges, and exercising greater control over medical staff. Hospitals have become so pivotal in the U.S. healthcare system that the Patient Protection and Affordable Care Act of 2010 (PPACA) frequently targeted them as a vehicle to enhance patient safety and control escalating health care costs. One such provision--the Hospital Readmissions Reduction Program, which goes into effect in fiscal year 2013--will reduce payments ordinarily made to hospitals if they have an \"excess readmission\" rate. It is estimated that adverse events following a hospital discharge impact as many as 19% of all discharged patients. When hospitals and similar health care facilities fail to adequately manage the discharge of their patients, devastating medical emergencies and sizeable healthcare costs can result. The urgency to better manage these discharges is compounded by the fact that the average length of hospital stays continues to shorten, potentially increasing the number of discharged patients who are at considerable risk of relapse. Also exacerbating the problem is a lack of clarity regarding who, if anyone, is responsible for these patients following discharge. Confusion over who bears responsibility for discharge-related preparation and community outreach, concerns about compensation, a lack of clear institutional policies, and the absence of legal mandates that patients be properly prepared for and monitored after discharge all contribute to the potential abandonment of patients at a crucial juncture. Although the PPACA establishes financial incentives for hospitals an","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"62 3","pages":"513-76"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32762255","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":"Take off your genes and let the doctor have a look: why the Mayo and Myriad decisions have invalidated method claims for genetic diagnostic testing.","authors":"Christopher Bergin","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Ass'n for Molecular Pathology v. U.S. Patent & Trade Office sent shockwaves through the legal community, when the U.S. District Court for the Southern District of New York rejected a series of patents held by Myriad Genetics, Inc. The court invalidated all of Myriad's compositional patents for human genes and its method patents for diagnosing genetic predispositions to breast cancer. While commentators have discussed the ethical implications of allowing patent rights to human genes in great detail, the Court's ruling on Myriad's method claims went by comparatively unnoticed. The ability to test a patient's genetic profile for predisposition to cancer and other diseases is an incredible achievement in the field of personalized medicine. Whether these tests deserve patent protection is a hotly debated issue that involves weighing the interests of both incentivizing research and making these tests available to the general public. This Comment analyzes the legal framework established by the Supreme Court and U.S. Court of Appeals for the Federal Circuit to decide patent eligibility for genetic diagnostic tests. It concludes that, while the world was spellbound by the ethical quandary of compositional claims on human genes, the recent Supreme Court and Federal Circuit decisions have surreptitiously eliminated genetic diagnostic tests as patentable subject matter under § 101 of the United States Patent Act.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"63 1","pages":"173-217"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32762256","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":"If it quacks like a duck: reviewing health care providers' speech restrictions under the first prong of Central Hudson.","authors":"Shawn L Fultz","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The First Amendment protects the speech of health care providers. This protection can limit states' abilities to protect patients from harmful therapies involving speech, such as sexual orientation change efforts. Because providers' speech is more similar to commercial speech than traditional political discourse, it is possible to create a First Amendment review analysis that better balances states' police powers with providers' First Amendment rights. Under a \"single-prong\" approach, the first prong of Central Hudson can be used to identify quackery, which is analogous to false or misleading commercial speech and would therefore be outside the protection of the First Amendment. Because health care must be tailored to individual patients, restrictions on speech that survive the first prong of Central Hudson would be subject to strict scrutiny in order to leave the therapeutic decision to the provider and her patient, and maintain consistency with current jurisprudence. This Comment examines litigation from California's attempted ban on sexual orientation change therapy to illustrate the conflicts created by the current approach to First Amendment review of health care provider speech. This Comment then demonstrates the benefit of the proposed single-prong approach, including how it simultaneously protects patients from harm while protecting health care providers' speech.</p>","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"63 2","pages":"567-606"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32762257","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}