Villanova law review最新文献

{"title":"The More You Spend, the More You Save: Can the Spending Clause Save Federal Anti-Discrimination Laws?","authors":"A. Juliano","doi":"10.2139/SSRN.283784","DOIUrl":"https://doi.org/10.2139/SSRN.283784","url":null,"abstract":"This article examines the intersection of three lines of Supreme Court jurisprudence: the restriction of Congress' ability to abrogate state's sovereign immunity to the exercise of powers under the Fourteenth Amendment; the requirement that Congressional exercises under the Fourteenth Amendment met the \"congruence and proportionality test\" and, the interpretation of the Fourteenth Amendment to prohibit only intentional discrimination. This jurisprudence interacts to threaten disparate impact claims against state governments. Professor Juliano proposes re-enacting legislation under the Spending Clause in order to save such actions against states.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1111"},"PeriodicalIF":0.0,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68374810","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":"Why Federalism Must be Enforced: A Response to Professor Kramer","authors":"Marci A. Hamilton","doi":"10.2139/SSRN.285405","DOIUrl":"https://doi.org/10.2139/SSRN.285405","url":null,"abstract":"The United States Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. The Court has been attacked for overstepping its bounds, and by some, on the ground that the federal/state balance should be maintained through the political process rather than judicial review. The most recent advocate of this position, Professor Larry Kramer, recently argued in the Columbia Law Review that the political party structure ensures state interests are taken into account at the federal level, and therefore the Supreme Court need not and should not enforce federalism guarantees. This criticism of the judicial enforcement of federalism fails as a matter of constitutional history and on empirical grounds. The Supreme Court in this era deserves praise, not criticism, for its recent federalism jurisprudence.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1069"},"PeriodicalIF":0.0,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.285405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68391637","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 bitter pill of empiricism: health maintenance organizations, informed consent and the reasonable psychotherapist standard of care.","authors":"G. Marczyk, E. Wertheimer","doi":"10.2139/SSRN.275640","DOIUrl":"https://doi.org/10.2139/SSRN.275640","url":null,"abstract":"Although adequate for holding most professionals to certain levels of conduct, the doctrine of negligence has traditionally been difficult to apply to treatment decisions in the mental health arena. The reasons offered for this difficulty all appear to revolve around the fact that psychology is still very much a philosophy and not a science, making it difficult to establish a clear standard of care. The advent of managed behavioral health care, with its accompanying emphasis on scientifically supported intervention, promises to rectify this situation. Managed behavioral health care is forcing the field of psychotherapy into changing its fundamental nature, from a philosophy-based profession into one emphasizing empirically supported \"cures.\" HMO insistence upon empirical evidence will change psychotherapy in numerous ways. Two of these changes are the development of a discernable standard of care-what the reasonable therapist should do regarding treatment choice-and a concomitant change in the content of informed consent, with the therapist obligated to inform the patient about alternative treatments and their success rates. The idea of coupling alternative treatments and success rates arises out of the development of the standard of care, with its implication that some treatments have more empirical support than others. If a particular treatment has strong empirical support, it may be negligent for a therapist to fail to offer that treatment. This empirically supported treatment may thus become the standard of care, with the therapist negligent for offering anything else. In a profession in which the choice of treatment may be based on the philosophy of the therapist and not upon empirical data, this change may be cataclysmic.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1 1","pages":"33-93"},"PeriodicalIF":0.0,"publicationDate":"2001-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.275640","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68293635","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 Distinctive Place of Religious Entities in Our Constitutional Order","authors":"Ira C. Lupu, R. Tuttle","doi":"10.2139/SSRN.270481","DOIUrl":"https://doi.org/10.2139/SSRN.270481","url":null,"abstract":"Although much has been written on the special place of \"religion\" in American law, there has been considerably less commentary on the distinctive quality of religious institutions as compared with their secular counterparts. The current law of the Religion Clauses, and the characteristics of institutions as compared to religiously motivated individuals, however, suggest that institutions deserve discrete attention. In this paper, a revised version of the Donald Giannella Memorial Lecture recently delivered at Villanova Law School, the authors focus on three different legal contexts in which questions of distinctiveness of religious institutions arise - their exemption from civil rights law with respect to the employment of clergy, their exemption from historic preservation law with respect to noncommercial real property, and their inclusion in programs of government financial support for privately delivered social services (a/k/a charitable choice). The paper develops a taxonomy of scholarly and judicial positions on such questions, including Religionists (who tend to favor whatever helps such institutions), Secularists (who tend to disfavor whatever helps religious entities), Separationists (who tend to favor distinctive treatment of such institutions, whether it helps or hurts them), and Neutralists (who tend to disfavor such distinctive treatment). In connection with the three examples, the authors develop their own position, which starts from a presumption of Neutralism but requires departures from that position if and only if the government's policy exceeds constitutional limits designed to maintain the state's penultimacy, while leaving ultimate concerns to private institutions dedicated to them.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"47 1","pages":"37"},"PeriodicalIF":0.0,"publicationDate":"2001-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68264497","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 bitter pill of empiricism: health maintenance organizations, informed consent and the reasonable psychotherapist standard of care.","authors":"G R Marczyk, E Wertheimer","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"33-93"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25907361","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":"Stock Market Insider Trading: Victims, Violators And Remedies-Including An Analogy To Fraud In The Sale Of A Used Car With A Generic Defect","authors":"William K. S. Wang","doi":"10.2139/SSRN.237803","DOIUrl":"https://doi.org/10.2139/SSRN.237803","url":null,"abstract":"This Article discusses the following two questions: (1) Is the act of stock market insider trading (as opposed to the accompanying nondisclosure or lie) a victimless crime? (2) Is stock market insider trading fraud? The Article also briefly addresses two additional questions: (1) When does insider trading or tipping violate federal securities law? (Included is an analysis of the \"classical relationship triangle.\") (2) Under federal securities law, what are some remedies and sanctions against a stock market insider trader or tipper? To demonstrate that each act of stock market insider trading has specific, although anonymous, victims, the Article employs two used car analogies: the solitary defect hypothetical and the generic defect hypothetical. In the solitary defect hypothetical, only one automobile is a lemon. In contrast, in the generic defect situation, many individuals are buying and selling cars, all the same year model and all with the same defect. In the generic defect hypothetical, Mr. Greedie, an executive employed by General Motors, receives material, nonpublic information that all 1998 Cadillacs have a major defect. By coincidence, Greedie personally owns a 1998 Cadillac and immediately sells it to a car dealer. Assume in the alternative that (1) the dealer does not ask Greedie about any defect, or (2) the dealer asks Greedie about defects, and Greedie LIES. With both alternatives, the problem of demonstrating injury is the same. During the period between Greedie's sale and the time of the defect's public announcement, many individuals are buying and selling 1998 Cadillacs, all with the same defect. At the time of the defect's announcement, there are a fixed number of 1998 Cadillacs. If Greedie has one less Cadillac at the time of the public announcement, someone else must have one more. That someone is the victim of Greedie's sale. I call this \"the law of conservation of used automobiles.\" If Greedie's sale of one car on inside information to the automobile dealer causes even a slight lowering of the dealer's prices for 1998 Cadillacs, that decline may dissuade or induce a transaction. In other words, the dealer may pass the injury to another by altering prices and readjusting inventory to the level preferred. If the dealer's prices do not change (or if the price declines fail to dissuade or induce a trade), the loss falls on the car dealer (an induced buyer). Under the \"law of conservation of used automobiles,\" Greedie's sale must induce a purchase or preempt a sale. The generic defect example resembles stock market insider trading, especially large block trades between an institutional investor and a block positioner. Such block transactions have aspects of face-to-face dealing. Stock market insider trading has some features of fraud, but differs from traditional fraud in several ways. Disclosure to the party on the other side or to the public may breach other duties. Also, such disclosure would not save the victim of the insider ","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"45 1","pages":"27"},"PeriodicalIF":0.0,"publicationDate":"2000-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68156954","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":"Bricks Plus Bytes: How 'Click-and-Brick' Will Define Legal Education Space","authors":"N. Terry","doi":"10.2139/SSRN.233649","DOIUrl":"https://doi.org/10.2139/SSRN.233649","url":null,"abstract":"Examining a number of technological, commercial and professional scenarios the author argues that the law school of the near future must become a hybrid place, what is known in ecommerce as a \"click-and-brick\" or \"click-and-mortar.\" In a click-and-brick law school distributive-learning techniques will fill much of the space, supplementing traditional class experiences and substituting for many of them. But a true click-and-brick will also integrate distance learning (or distance education) methodologies, reaching out to remote students, enabling collaboration with off-campus faculty and consuming remote content. The article examines the qualitative and institutional arguments frequently raised against such non-traditional legal education and argues that the traditional law school model will be substantially altered not only because of the implications of the new enabling technologies but because law school space is no longer a self-contained autonomous, insulated environment. The article examines how a sustainable click-and-brick model for legal education will involve significant re-engineering of virtual and physical law school space, a re-engineering that must be cognizant of the ways in which law practice is being reshaped and how the law school curriculum will require major re-tooling to be relevant to the Information Age.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"95"},"PeriodicalIF":0.0,"publicationDate":"2000-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68117022","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":"Lessons from Abroad: Complexity and Convergence","authors":"Linda S. Mullenix","doi":"10.2139/ssrn.233659","DOIUrl":"https://doi.org/10.2139/ssrn.233659","url":null,"abstract":"In the mid-1970s, Professor Abram Chayes published one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, which described a paradigm-shift with the emergence of public interest law in the 1960s. As I have written elsewhere, Professor Chayes' model no longer holds either descriptive or prescriptive power at the end of the twentieth century. The public interest law paradigm Professor Chayes described fails as a model for the complex litigation that the American judicial system has experienced in the last twenty years.Without repeating that critique, two observations are in order. First, modern complex litigation, particularly mass tort litigation, is being resolved in ways that resemble private legislation, negotiated and approved by unelected people. This private legislation ― most often class action settlement ― affects thousands and, in some instances, hundreds of thousands of citizens. Second, a new descriptive paradigm is needed to capture both the essence and the nuance of the complex litigation that the American judicial system has experienced at the end of the twentieth century.Scholars who posit models or describe paradigm shifts chiefly are engaged in the enterprise of re-evaluation of facts. That is, new descriptive models emerge from a fresh appreciation of facts, replacing former orthodoxy. This is certainly what Professor Chayes did in describing the emergence of the public law model. Professor Chayes viewed the litigation landscape of the 1960s that gave rise to the modern class action rule, structural injunctions and institutional reform litigation. He assimilated these facts and reconstructed prior litigation theory that had been based on a model of bipolar litigation. While it is difficult enough to describe a model of complex litigation at the end of the twentieth century, it is perhaps even more challenging to forecast the future of complex dispute resolution. History has taught that adjective law-civil procedure-is not static. In particular, complex litigation has pushed the boundaries of civil rules that were designed for simple litigation. Therefore, the globalization of social and economic transactions in the twenty-first century will affect complex litigation, and the procedures for resolving complex disputes will be informed by legal lessons from abroad.Regarding complex dispute resolution, the future of complexity is more complexity. Complex systems tend to become more complex. Moreover, procedural rules develop in a dialectic. Thus, systems tend to start with simple rules, but over time rules tend to become longer, more nuanced, textured and complex. In the past twenty years, almost every rule revision has yielded a lengthier and more convoluted rule, as the drafters have attempted to provide solutions for every problem and contingency. Part of this dialectic is that the impulse towards complexity inevitably leads to reform and simplification. At some point, when the rule","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68117141","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":"Federalism's 'Old Deal': What is Right and Wrong With Conservative Judicial Activism","authors":"P. Shane","doi":"10.2139/SSRN.208674","DOIUrl":"https://doi.org/10.2139/SSRN.208674","url":null,"abstract":"In an article based on his Fall, 1999 Reuschlein Distinguished Lecture at Villanova Law School, Professor Shane argues that the Supreme Court is leading a misguided project of conservative judicial activism aimed at curtailing Congress's commercial regulatory powers, in the interest of preserving state autonomy. This activist initiative has recently been defended by Fourth Circuit Chief Judge J. Harvie Wilkinson, in Brzonkala v. Virginia Polytechnic Institute, which overturned the civil damages remedy enacted as part of the Violence Against Women Act. Professor Shane argues, however, that the federal courts have not shown any compelling institutional need with regard to federalism that justifies inventing new limitations on congressional authority. No less than Congress have the States amassed political and economic power unimagined by the Framers. Nor did the Supreme Court in Lopez v. United States formulate a workable and coherent legal doctrine for limiting Congress's Commerce Clause authority that relates in any sensible way to the values of federalism. Judge Wilkinson's defense contends that Lopez-style activism is necessary to avoid judicial abdication of the courts' interpretive authority regarding the Constitution, and that it is better than Lochner-style activism because it does not disable state legislative authorities from dealing with social problems. Shane argues that Wilkinson misconstrues the nature of the courts' interpretive authority and ignores the importance of empowering the national legislative authority to deal with national problems. Wilkinson argues also that Lopez-style activism is better than Lochner-style activism because it does not advance the agenda of a particular constituency, such as big business. Shane responds that the current cases do advance the agenda of an ideological, rather than economic constituency, and that the majority Fourth Circuit opinion in Brzonkala is a \"culture wars barrage\" that violates appropriate norms of judicial temperament. Shane concludes that Congress is better viewed as a partner, rather than as a threat, if states and localities are to preserve effective autonomy during the era of globalization.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"32 1","pages":"201"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.208674","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67905052","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 Burdens of Benefits","authors":"Edward J. McCaffery","doi":"10.2139/SSRN.172990","DOIUrl":"https://doi.org/10.2139/SSRN.172990","url":null,"abstract":"All benefits programs impose burdens on some groups -- those that have to pay to finance them, those that are excluded, those whose conduct is regulated by the benefits program itself. Notions of normative family structure have typically been at the center of American benefits programs. This article compares and contrasts programs that benefit \"core\" families, with a working man and a stay-at-home wife, with those that benefit \"non-core\" cases. In each case, one example is drawn from the tax system, one outside. The social security system and marriage bonuses within tax illustrate benefits for the core cases; the welfare/workfare system and the earned income tax system illustrate benefits for non-core cases. In the former case, the status of the programs as benefits ones becomes lost in a reconstituted sense of the status quo or baseline; these programs are taken for granted, their burdens are not noticed, and they are not analyzed as instances of social engineering. In benefits programs for non-core cases, in contrast, the burdens are keenly noticed, support for the programs is fragile, and they are constantly analyzed in consequentialist terms.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"44 1","pages":"445"},"PeriodicalIF":0.0,"publicationDate":"1999-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67728930","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}