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“WHITE COLLAR CRIME” IS A EUPHEMISM TO ABANDON
Full text linkAlthough the phrase “white collar crime” is ubiquitous among lawyers, it is a euphemism that creates an arbitrary distinction among crimes and perpetuates an upper-class bias for certain types of criminal conduct while simultaneously denigrating others. The phrase further performs a problematic social signaling function, including by expressly invoking “whiteness.” On balance, the phrase should be abandoned and replaced with one that either creates a meaningful distinction or leads to more inclusiveness in the legal practice.https://scholarship.law.slu.edu/lawjournalonline/1125/thumbnail.jp
Transnationalization of Legal Education: A Confluence of Multiple Factors Review of “The Globalization of Legal Education: A Critical Perspective” by Bryant Garth and Gregory Shaffer
Full text linkLegal education across many parts of the world is increasingly transnationalized. Transnationalized legal education is a metamorphosis propelled by a combination of factors, some endogenous to the law school and legal community, some exogenous to them. This review essay finds that globalization and reform of legal education are often part of a broader change within a state. Any reform of legal education is often chaotic, as it deals with human actors, not with value-free formulas. The engineers of reform of legal education have not been a single or cohesive force, but more often groups of reformers have coalesced with others to engender changes
Desegregating Behavioral Health Care for Medicaid Youth
Full text linkThe Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 581 (1999) that it is a violation of the Americans with Disabilities Act (ADA) for states to rely on institutionalized care when home and community-based care is more appropriate. Yet, over a quarter of a century later, states persist in institutionalizing youth experiencing behavioral health disabilities. This article explores Olmstead’s impact thus far on deinstitutionalization of youth behavioral health care, and the limits of Olmstead as a vehicle for lasting change. We argue that, although recent enforcement actions reflect critical change, Olmstead enforcements alone cannot succeed in achieving the goal of deinstitutionalization. Therefore, federal and state governments must coordinate to prioritize further solutions and funding to achieve desegregation of behavioral health care for children through access to home and community-based care
Colonizing Queerness
Full text linkThis Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives continually privilege white heteropatriarchal structures that dominate over non-normative sexualities.Through covert demands upon queer identities to assimilate with the status quo, such settler colonialist motivations are visible in the way Supreme Court gay rights advancements have facilitated a conditional but normative path to mainstream citizenship for queer identities. By employing concepts from critical race theory, queer studies, and settler colonial theory, this Article illuminates on how the Court’s cases are indeed part of American settler colonialism’s sexuality project and answers why such legal advancements always appear monumental, but ultimately remain in the control of a discriminatory status quo. Only if queer legal advancements are accompanied by essential shifts from the normative structures of white settler heteropatriarchy will such victories live up to their liberatory claims. Otherwise, such apparent progress will continually attempt to marginalize—indeed, colonize—queerness
Health Care Transactions and the 2023 Merger Guidelines: Shift to Substantial Lessening Principle
Full text linkIn response to growing concerns regarding consolidation in the healthcare industry and the limitations of the consumer welfare standard focus, the Biden Administration’s repeal of healthcare-specific guidance and the introduction of the 2023 Merger Guidelines mark an important shift in antitrust enforcement. Departing from the 2010 Horizontal Merger Guidelines, the new framework centers on the “substantial lessening” principle grounded in the text of Section 7 of the Clayton Act. The goal––to empower regulators to scrutinize mergers that may harm the competitive process beyond cases that clearly raise prices for consumers. This Note discusses the legal implications of this shift, particularly for nontraditional mergers such as vertical, cross-market, and serial acquisitions that are increasingly used in healthcare. Additionally, this Note explores how the guidance update aims to close enforcement gaps, bolster pre-merger risk assessment, and seeks to reflect current market dynamics and academic thought. Furthermore, this Note examines recent case studies and enforcement actions to evaluate the principle’s viability and its potential to align antitrust review with the statute’s purpose––protecting competition
Rethinking Foundations and Analyzing New Conflicts: Teaching Law After Dobbs
Full text linkThis Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant foundational courses like Constitutional Law, Family Law, and Health Law, in the uncertain and shifting post-Dobbs landscape. We argue that including historical and theoretical context alike will aid in and enhance learning. Likewise, developing data and historical literacy will help students understand doctrinal shifts over time and provide grounding for contextualization and application for such changes
Do Public Accommodations Laws Compel “What Shall be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Elenis
Full text linkThis article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also cite Barnette’s progeny, including Wooley v. Maynard and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. Business owners, their lawyers, and judges who have invoked these cases argue that state public accommodations laws requiring that businesses not discriminate based on sexual orientation in providing goods and services compel both speech and silence. In 303 Creative, Justice Gorsuch’s majority (6-3) opinion quotes the beginning of Barnette’s “fixed star” passage but adapts it: the fixed star becomes “the principle that the government may not interfere with ‘an uninhibited marketplace of ideas.’” Gorsuch moves from the public school room—in which a state law compelled Jehovah’s Witness children to salute the flag, despite their religious beliefs—to the commercial marketplace, but gives little guidance about how broadly the protection of creative expression in this “marketplace of ideas” will extend. While Justice Gorsuch situates the Court’s protection of website designer Lorie Smith against compelled speech—and orthodoxy—in the commercial marketplace as the latest in a series of courageous First Amendment decisions by the Court protecting individuals against an encroaching state, Justice Sotomayor’s dissent excoriates the majority for departing from the long history of the Court courageously defending citizenship-expanding antidiscrimination laws against backlash and repeated First Amendment challenges. This article argues that 303 Creative’s use of Barnette extracts it from its wartime, antitotalitarian context, ignores crucial distinctions drawn in Barnette, and (as Justice Sotomayor’s 303 Creative dissent warns) “‘trivializes the freedom protected in Barnette,’” while also undermining public accommodations laws. The article also considers the recent invocation of Barnette and its progeny to challenge other forms of governmental regulation, including state regulation of crisis pregnancy centers and state bans on conversion therapy
Unpatenting Product Hops
Full text linkOn July 9, 2021, President Joseph R. Biden signed Executive Order 14036 (“Promoting Competition in the American Economy”), which directed the U.S. Food and Drug Administration (FDA) and the U.S. Patent and Trademark Office (USPTO) to collaborate on new approaches to increasing competition and lowering prices in the pharmaceutical marketplace. In response, the USPTO outlined several new initiatives, among them an intent to improve the robustness and reliability of issued patents.A major impetus for the Executive Order was the pervasive nature of pharmaceutical product hopping, which occurs when manufacturers introduce new follow-on versions of lucrative pharmaceutical products to the market, like extended-release forms of drugs or modifications to device components of combination therapeutics. Product hops are usually intended to mitigate lost market share due to generic competition or thwart generic competition entirely. Yet the small added value of these new products is usually far outweighed by excess costs to payers and patients alike. Product hops remain an essential part of product lifecycle management strategies due to patents, which discourage manufacturers from entering lucrative markets, encourage settlement and delayed generic entry, and undermine the fundamental constitutional intent of the patent system—a time-limited exclusive right.Elevating patentability standards at the USPTO could mitigate product hopping through the rejection of weaker patents, which should eventually curtail patent applications from manufacturers that attempt to create “new,” yet arguably uninventive, products intended primarily to capture market share from would-be competitors.This article evaluates the core elements of patentability and relevant case law, highlighting opportunities for the USPTO to strengthen its review of pharmaceutical patents. When coupled with regulatory reforms that further mitigate the impact of product hops, pharmaceutical research and development may pivot away from product life cycle management strategies and toward transformative innovation that accelerates the development of the next generation of therapeutics and cures