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Feres: The “Double-edged Sword”
No full textIn Feres v. United States, the Supreme Court barred service members from suing the Government under the Federal Tort Claims Act if the injuries occurred “incident to military service.” In establishing this doctrine, the Court discussed the necessity of protecting the military from lawsuits to ensure effective decision-making by military leaders.
Scholars have harshly criticized Feres in the modern era, arguing Feres must be overturned to provide service members with a greater opportunity for recovery. Specifically, many scholars admonish Feres because the Supreme Court failed to provide a clear definition of “incident to military service.” Lacking a clear definition of “incident to military service,” Feres has transformed into a blanket waiver of all military tort claims against the Government. This broad interpretation has led to the denial of justice to numerous soldiers throughout the country.
In May 2019, the Supreme Court denied certiorari to consider Daniel v. United States, where plaintiff asked the Court to overturn Feres. After the Supreme Court declined to hear Daniel, it became evident that the Court has no intention of ever completely overturning the doctrine. Congress passed the National Defense Authorization Act in December 2019, allowing service members to file claims with the Department of Defense for medical malpractice injuries caused by the Government. While this exception is considered a victory, Feres remains a blockade to service members attempting to recover for non-medical tort claims through a court of law. This Comment will recommend the Supreme Court establish a consistent approach to defining “incident to military service” for the lower courts to apply
Choice of Law and the Preponderantly Multistate Rule: The Example of Successor Corporation Products Liability
No full textMost state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules having preponderantly multistate application.” For choice of law cases presenting conflicts between such nominally domestic rules I use the term “preponderantly multistate cases.”
As courts and scholars so far have failed to perceive the category of preponderantly multistate cases they have failed to appreciate their qualitative difference from cases presenting a choice between only locally oriented rules of law. This article describes preponderantly multistate cases and critiques the myriad ways in which courts have applied conventional choice of law methodologies to decide one category of these cases—those involving successor corporation products liability. The critique demonstrates why a court choosing between nominally domestic rules in a preponderantly multistate case never should use conventional choice of law methodologies. My thesis is that when a state lawmaker, whether a legislature or a court, adopts a nominally domestic rule having preponderantly multistate application, the lawmaker concomitantly makes an inherent choice always to apply that substantive rule in the state’s courts. Hence, in preponderantly multistate cases the forum should not be free to ignore the lawmaker’s choice of law; the forum just should apply its substantive law to all preponderantly multistate issues
Don\u27t Change the Subject: How State Election Laws Can Nullify Ballot Questions
No full textProcedural election laws regulate the conduct of state elections and provide for greater transparency and fairness in statewide ballots. These laws ensure that the public votes separately on incongruous bills and protects the electorate from uncertainties contained in omnibus packages. As demonstrated by a slew of recent court cases, however, interest groups that are opposed to the objective of a ballot question are utilizing these election laws with greater frequency either to prevent a state electorate from voting on an initiative or to overturn a ballot question that was already decided in the initiative’s favor. This practice is subverting the original intent of procedural election laws and stripping citizens of the right to participate in a direct democratic process by nullifying their votes.
While procedural election laws were originally implemented as a means of safeguarding the average voter, they have now become an important tool for special interest groups to block legislation they oppose without having to attack the actual substance of the bill. This Comment will argue that parties are misusing procedural election laws and that such election laws must either be amended or replaced to once again achieve their underlying purpose of protecting voters. It will begin by examining the history and purpose of some of the most common procedural election laws on the books. It will then examine how some of these laws are used to block the Marsy’s Law initiative, which has recently been proliferating throughout the states. Finally, this Comment will emphasize some of the more serious consequences resulting from these practices and provide recommendations for how to alleviate them while still protecting the public interest
A Pathway to Health Care Citizenship for DACA Beneficiaries
No full textSince 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other deferred action beneficiaries are eligible for benefits through Medicaid, the Children’s Health Insurance Program, and the Affordable Care Act, the Obama Administration specifically excluded DACA beneficiaries. This decision undermines DACA’s goal of legitimizing beneficiaries’ presence in the United States. From a health policy perspective, it weakens efforts to improve health care equity, health care system efficiency, and public health. Changed circumstances in immigration and health policy justify a change in the policy excluding DACA beneficiaries from subsidized health coverage. It is no longer necessary to subordinate health-related interests to the decade-old, constrained choices of immigration policymakers. As a necessary stopgap on the way to immigration reform and health reform, the Biden Administration should eliminate the DACA carveout and extend the benefits of subsidized health coverage to all deferred action beneficiaries. The DACA carve-out is a useful case study illustrating how value-laden notions of deservingness in the laws governing eligibility for subsidized health care create systemic costs in the health care system and can harm public health
Inclusivity in Admissions and Retention of Diverse Students: Leadership Determines DEI Success
No full textPenn State Dickinson Law has been leading with an Antiracist admissions philosophy and corresponding plans for implementation before the COVID-19 pandemic of 2020. Arguably, this approach to diversity, equity, and inclusion (DEI)was not identified explicitly as a vision priority for the law school until July 2019, when Dickinson Law welcomed Danielle M. Conway as the first Black Dean and first woman Dean in the law school’s 186-year history. Dean Conway outlined four vision priorities to accomplish within her first five years at Dickinson Law. Vision priority number two calls upon the law school’s administrators to move the needle substantially on DEI within the student body and among faculty and staff. While Admissions Team members were eager to embrace the worthy objective of Antiracist enrollment management, their efforts were aided by the cultural shift happening within the larger context of the Dickinson Law community. The three central elements integral to Antiracist enrollment management at Dickinson Law include: (1) embracing visionary leadership with clear prioritization of DEI goals; (2) utilizing data-driven recruitment and strategic resource allocation; and (3) explicitly articulating cultural shifts within the law school community (see Proposals 2 and 3) to prospective students.
Dickinson Law has historically defined diversity broadly, to include racially and ethnically minoritized communities, women, individuals with disabilities, students of nontraditional graduate school age, members of the LGBTQ community, individuals from rural and under resourced communities, veterans, and any other individuals who have experienced marginalization or subordination in educational settings. While we aim to craft a student body that represents multitudes of these—often intersecting—identities, this paper focuses specifically on our ability to recruit, enroll, and retain racially and ethnically minoritized students
Embracing and Making Change in Legal Education: Serving the Law Students of Today and Tomorrow
No full textDanielle M. Conway is Dean and Donald J. Farage Professor of Law at Penn State Dickinson Law. The following are her keynote remarks delivered Jan. 6, 2021, for the 2021 AALS Joint Section Program of the Sections on Student Services and Part-Time Division, Academic Support, Balance in Legal Education, Minority Groups, and PreLegal Education and Admission to Law School
