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On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Brief for Private Petitioners on Severability, National Federation of Independent Business, et al., v. Kathleen Sebelius, et al., State of Florida, et al., v. Department of Health and Human Services, et al., Nos. 11-393, 11-400 (U.S. Jan. 6, 2012)
Get PDFResponse Essay: Some Observations on Professor Schwartz\u27s Foundation Theory of Evidence
Get PDFProfessor David Schwartz\u27s A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be case-specific, assertive, and probably true. His shorthand for the tripartite requirement is that evidence must be well founded. Hence, he calls his theory the foundation theory of evidence and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges\u27 rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter.
This response essay addresses two of Schwartz\u27s most intriguing and central contentions: (1) that almost all evidence must be case-specific, assertive, and probably true ; and (2) that scholars who say there is no such thing as conditional relevance—that it is an incoherent concept—are wrong: conditional relevance exists and is widespread. The two are linked in Professor Schwartz\u27s view because it is the tripartite requirement in (1) that often make evidence conditionally relevant as asserted in (2)—that is, irrelevant unless something is shown to establish that it complies with the elements of the tripartite requirement
Changing the Narrative of Child Welfare
Get PDFIn child welfare, the difference we can make as lawyers for parents, children, and the state, and as judges, is to prevent children from entering foster care unnecessarily. And we can end a child’s stay in foster care as quickly as possible. To do that, we have to fight against a powerful narrative of child welfare and against the accepted “top-down” paradigm of legal services.
In this essay, Professor Fraidin suggests that we can achieve our goals of limiting entries to foster care and speeding exits from it by looking for the strengths of the people involved in our cases, rather than their weaknesses. We can look for what they can do, rather than what they can’t. We can focus on their abilities, not the shortcomings over which we often obsess—like drug addiction, impatience, illiteracy, poverty. We can start from a premise that families involved with child welfare are bundles of assets, rather than collections of problems. If we can do all this, we can help families build, rather than watch them fall
Healthcare Reform Hangs in the Balance
Get PDFIn this timely new briefing, Professor Lawrence O. Gostin, University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University writes:
Prior to Tuesday’s arguments, I believed that the Supreme Court would uphold the health insurance purchase mandate by a comfortable margin. But now I believe that health care reform hangs in the balance. Here are the key arguments on which the future of President Obama’s health care reform depends: a greater freedom, cost-shifting, the health care market, acts versus omissions, limiting principles, the population-base approach, and what is necessary and proper. If the Court strikes down the individual mandate, everyone’s premiums for health insurance could rise inexorably. Is that what a decent society would want or accept
Why the Affordable Care Act\u27s Individual Purchase Mandate is Both Constitutional and Indispensable to the Public Welfare
Get PDFIntegral to the Affordable Care Act\u27s (ACA’s) conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional.
It is common sense for everyone to purchase health insurance and thus gain security against the potentially catastrophic costs of treating a serious illness or injury. However, Congress’ method of ensuring that everyone has health insurance is actually novel. It appears that Congress has never before mandated that individuals enter into a contract with a private company. Although some scholars have pointed to precedents—such as the requirement that everyone pay into the Medicare system—these appear distinguishable—in the case of Medicare, for example, it is a public program, albeit with private aspects.
The very idea that Congress could exercise this unprecedented power has provoked mostly (but not only) conservatives to recite a parade of horribles, ranging from mandatory purchase of things that are good for individuals (buy broccoli, a fitness club membership) or good for society (buy electric cars to stimulate environmentally friendly industry sales). Fundamentally, critics believe that individuals have the right to be left alone—to opt out of commerce (buy no insurance) and self-insure or simply accept the consequences if they fall ill
Can an Old Dog Learn New Tricks? Applying Traditional Corporate Law Principles to New Social Enterprise Legislation
Get PDFSeven U.S. states have recently adopted the benefit corporation or the flexible purpose corporation—two novel corporate forms intended to house social enterprises, i.e., those ventures that pursue social and environmental missions along with profits. And yet, these corporate forms are not viable or sustainable if they do not attract social entrepreneurs or social investors due to the lack of understanding and inquiry into how traditional corporate law principles will be applied to them. This article begins this necessary examination. As a first approach, this article assesses shareholder primacy and the shareholder wealth maximization norm in the context of the sale of an early-stage flexible purpose corporation. As the market for products and services produced by social enterprises grows, traditional “profit-maximizing” corporations, which may have given limited attention to their social or environmental outputs in the past, want a piece of this market share and can make a rapid market entrance by acquiring an established social enterprise. Using the lens of a corporate acquisition, this article argues that the shareholder wealth maximization norm must be rejected for flexible purpose corporations given the statute’s legislative history and a contractarian view of shareholder primacy where shareholders’ interests are both economic and non-economic. Nonetheless, rejection of the norm leaves a gap in directors’ accountability to shareholders. This article examines alternative accountability mechanisms, including employing a heightened standard of review to the sale of flexible purpose corporations
Response: The Death of the Bisexual Saboteur
Get PDFProfessor Glazer offers us, in Sexual Reorientation, an appealing and intuitive way to deal with the difficulty of bisexual identity, an identity that has always fit uneasily and sometimes quite unhappily in the LGBT rights movement. If the principal problem of bisexuality is its very temporal changeability, its tendency to dissolve into heterosexuality or homosexuality depending on the gender of one\u27s sexual partner, then Glazer\u27s solution is elegant. She proposes that we bifurcate (so to speak) sexual orientation into two subcategories and acknowledge for everyone both a general and a specific orientation. General orientation is the sex toward which the individual is attracted as a general matter, while specific orientation is determined by the sex of the individual\u27s current partner. Thus, for bisexuals and anyone whose specific coupling does not fall in line with how they generally understand their sexual identity, Glazer\u27s sexual reorientation offers a neat way to own both a general and a specific identity.
Glazer elaborates on her new categories by analogizing to two deep tensions in the theorizing on sexual identity: the distinctions between status and conduct and between individual and group rights. Glazer suggests that one\u27s sexual identity has a general characteristic--a type, as she puts it, such as someone who is normally attracted to women--that may or may not align with the gender of one\u27s partner at any given time. This general orientation, or type, is analogous to one\u27s sexual status, whereas one\u27s specific orientation recognizes the act or conduct of partnering with a specific person. Moreover, according to Glazer, one\u27s general orientation belongs to each person as an individual while one\u27s specific orientation is necessarily more relational, as it describes one\u27s sexual orientation once coupled. The result for Glazer is a reorientation of sexual identity that would not only overcome some of the problems presented by the status/conduct distinction and accommodate both individual and relational conceptions of identity, but would also provide the law with the ability to protect living identities
Advancing Social Justice as Lawyers: And How Social Media Can Be Part of Your Effort
Get PDFCommencement Address to the 2012 Graduating Class of UCLA Law, May11, 2012 at UCLA Law School.
Professor Chai Feldblum\u27s theme is how you can be part of advancing social justice as lawyers–-and how the time that people might say you are “wasting” on social media (be it Twitter or FB or whatever you may use) can, in fact, be an essential part of social justice work
Assessing the Impeachment of President Bill Clinton from a Post 9/11 Perspective
Get PDFThe impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and send a message of disapproval. Congress was attaching a scarlet letter. But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the President\u27s ability to govern and be Commander in Chief. This article will argue that such a frivolous use of the impeachment process is inappropriate and dangerous, especially in a post 9/11 world. The framers of the Constitution had it right; impeachment is a drastic remedy to be invoked only as last resort. This article will compare the Clinton impeachment with the two prior efforts to impeach a president: Andrew Johnson in the 1860\u27s and Richard Nixon in the 1970\u27s. In that comparison, it will note that, unlike the Clinton impeachment, those were serious efforts to remove a president from office, not merely attach a scarlet letter. Finally, it will assess what factors allowed this misuse of the impeachment process and how we can avoid it in the future. It will suggest that the exuberance of the 1990s, the apparent absence of outside enemies at the time, and the security of seats in the House of Representatives (so-called safe legislative seats ) contributed to this nonchalant--and dangerous--attitude toward impeachment. September 11, 2001 changed some of those factors, but not all
What’s Right About the Medical Model in Human Subjects Research Regulation
Get PDFCritics of Institutional Review Board (IRB) practices often base their charges on the claim that IRB review began with and is premised upon a medical model of research, and hence a medical model of risk. Based on this claim, they charge that IRB review, especially in the social and behavioral sciences, has experienced mission creep . This paper argues that this line of critique is fundamentally misguided. While it remains unclear what critics mean by medical model , the point of contemporary human research subjects regulation remains the same across all domains of research. That point is to protect the autonomy of human subjects, primarily through the use of informed consent. In fields as different as biomedical self-experimentation and ethnography there is the danger of losing sight of subjects\u27 autonomy. Critiques of the so-called medical model are sometimes libertarian and sometimes utilitarian in spirit. Either way, such critiques have not yet demonstrated that these philosophical schools of thought have the resources to guard against the potential risk of harm that lexically prioritizing the autonomy of human subjects does. Precisely because IRB review recognizes that human subjects research occurs in different fields using different research methods, IRB review requires researchers to explain their particular methods, the particular risks of harm created by these methods, and the implementation of procedures by which subjects may autonomously consent to precisely those risks