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Brian Constantine v. New Jersey Department of Banking and Insurance Div
No full textUSDC for the District of New Jerse
Nonparty Litigation Holds: Clear to Implement. Complex to Lift.
No full textLegal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents beyond their automatic retention policy will keep a legal hold in place for a prolonged period of time. Consequently, the nonparty has no choice but to manage increased expenses, wasted time, and prolonged security risks. Therefore, nonparties subject to this requirement are forced to withstand an unnecessary burden, despite not being a party to the case in question. While the Sedona Conference has attempted to mitigate this burden, this note advocates for the Judicial Conference, which advocates for amendments to the Federal Rules of Procedure, to address this problem directly. More specifically, this note proposes the burden be entirely shifted to the requesting party to outline an explicit period of time for which a nonparty is required to preserve its documents
Getting Off Off-Duty: The Impact of Dobbs on Police Officers’ Private Sexual Lives
No full textUpon its leak and subsequent official release, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization shocked and worried the nation. Overnight, the Court overturned forty-nine years of precedent. Those forty-nine years of overturned precedent not only implicate the ability to obtain abortion, but also the ability to engage in relationships, marry, make decisions about our own body, and keep our personal lives private. As a result, many advocates worry about the status of fundamental rights since many of those rights relied on the now overturned cases Roe v. Wade and Planned Parenthood v. Casey as well as the legal reasoning within those cases. As public employees with unique public safety duties, police officers are no strangers to department regulation of their conduct, both off- and onduty. Officers previously challenged adverse employment actions taken against them for off-duty conduct by arguing that the police department violated their right to privacy. Now, with the right of privacy on shaky ground due to the Dobbs decision, the future of officer success in these actions is uncertain. This note analyzes exactly how the Dobbs decision changes the legal landscape for securing fundamental rights. Following an analysis of the case, the note highlights the new challenges officers must overcome in order to successfully protect their private sexual lives from government intrusion. While this note argues that success is difficult, alternative strategies exist which may help secure off-duty sexual privacy for all
Reflections on Purpose and Professional Identity Formation
No full textI am very grateful to Professor Daisy Floyd for starting this important conversation about the role of purpose in professional identity formation, and for inviting me to participate in it. As I know my co-panelists agree, this is an important conversation not simply to us as lawyers, but as humans, trying to help each other figure out how to live good, meaningful lives.
I think what might be most useful in my response to Professor Floyd is to turn at least initially from the theoretical to the personal and practical by offering some insight into my own experience with purpose in both law school and my career, and then some related observations. In doing so, I hope to both echo and accentuate some of what Professor Floyd has observed, and also to flag a few areas of complexity in this conversation that might be worth our time as we continue to engage with and clarify this topic in the context of legal education and professional identity formation generally
Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries and What the Law Can Do About It
No full textThe nearly four million Americans who undergo gynecological surgeries each year suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance and identifies legal solutions.
America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.
As payors disvalue the bodies of those needing gynecological care, the medical profession has organized accordingly. Surgical training for Obstetrician Gynecologists (OBGYNs) is truncated as compared to other surgical disciplines. They are incentivized to pursue a mix of better-paid work, rather than pursue the advanced training and specialized experience necessary to perform surgery consistently. Instead, most OBGYNs may perform particular surgeries only a few times per year, a context shown to magnify the risk of preventable injuries.
Traditional approaches, under informed consent and medical malpractice laws, take for granted the fundamental economic structure that sets aggregate levels of risk. A range of laws, including a provision in the Affordable Care Act, do promise equal treatment. Close analysis, however, reveals a range of barriers to redress. Congress has made federal payment rates unreviewable by courts, even if illegal. Notwithstanding the federal government’s ironic immunity from its own laws, this Article suggests that private health insurers may be held liable for going along with the federal government’s discrimination, but it is difficult for individual patients to assert their interests in reorganizing the medical profession.
There are narrow and uncertain paths for legal accountability, but the political economy of this problem is no less daunting. Presently, overall Medicare payments are conceived as a zero-sum game, pitting patients against each other. Nonetheless, Constitutional litigation under the Equal Protection Clause may give voice to those working for the health of women in America
Foreword
No full textOn February 24, 2022, the Russian Federation invaded Ukraine. After more than two years, this conflict has caused an uncountable number of victims and more than six million Ukrainian refugees are spread around the world begging for protection and safe harbour. This ongoing conflict and the increasing level of force, the questionable nature of means and methods of warfare used begs the question whether international institutions in general, and International Law in particular, are still effective means “to maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead.” (Article 1 UNC)