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Civil Procedure: The Institutional Pragmatist
No full textProvides a sweeping overview of Justice Ginsburg’s jurisprudenceThe passing of Justice Ruth Bader Ginsburg in September of 2020 marked a grim day for women and the broader progressive legal community. In her twenty-seven years on the Supreme Court and thirteen years on the Court of Appeals, she was most known for her trailblazing work on gender equality; however, she also influenced the direction of a multitude of legal subject areas during her long tenure. The Jurisprudential Legacy of Justice Ruth Bader Ginsburg is a critical examination of Justice Ginsburg’s remarkable career, with a focus on the common themes and approaches underscoring her many rulings.In this edited volume, Ryan Vacca and Ann Bartow bring together leading scholars of American law to analyze Justice Ginsburg’s voting patterns and written opinions from the perspectives of subject matter experts. Each essay highlights areas of the law in which Justice Ginsburg had an outsized interest or impact. Chapters delve into topics such as gender equality, voting rights, the death penalty, civil and criminal procedure, employment discrimination, freedom of expression, bankruptcy, environmental law, immigration, and taxation. Together, they form a colorful tapestry that illustrates a long and celebrated judicial career, displaying Ginsburg’s immense influence on areas of the law well beyond women’s rights.The Jurisprudential Legacy of Justice Ruth Bader Ginsburg shares profound insights into its subject’s unique legal philosophy, and reminds us what we had and whom we lost with her passing.https://scholarship.law.ua.edu/fac_bookchapter/1001/thumbnail.jp
Promoting Vaccine Innovation
Full text linkAs society grows to understand the need to promote innovation, policymakers try to employ an arsenal of policy tools, from traditional intellectual property ( JP ) to newer tools such as grants, regulatory vouchers, and prizes. This Article argues that these frameworks crowd out certain types of investments in innovation projects that have a high social value. Vaccine innovation is a case in point. Despite the immense socioeconomic benefit of vaccines, existing policies have been limited in fostering investments in this space. This is because they fail to directly address the relevant bottleneck issues distinct to vaccine development.
This Article offers a policy measure especially apt at addressing this gap-tax law. Using properly designed tax instruments, policymakers can harness markets to produce innovation in a bottom-up manner. A key advantage of tax preferences for developing innovation is that they offer a superior mechanism of allocating risks and rewards while economizing on resources, administrative costs, regulatory capture, and informational problems.
The framework developed here offers a way forward in vaccine development, but also serves as a blueprint for interventions in other traditionally underfunded socially beneficial innovations. Critically, tax policies work synergistically with other policy measures, making them an important lever in the regulatory toolset-a vital measure for preparedness in the post-pandemic world
Religion and the American Constitutional Experiment
No full textThis accessible and authoritative introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors analyze closely the formation of the First Amendment religion clauses and describe the unique and enduring principles of the American experiment in religious freedom - liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion. Successive chapters map all of the 240+ Supreme Court cases on religious freedom - covering the free exercise of religion; the roles of government and religion in education; the place of religion in public life; and the interaction of religious organizations and the state. The concluding reflections argue that protecting religious freedom is critical for democratic order and constitutional rule of law, even if it needs judicious balancing with other fundamental rights and state interests.Clear, comprehensive, multidisciplinary, and balanced, this classic volume is an ideal classroom text. This new 5th edition addresses fully the new hot-button issues and cases on religious freedom versus sexual liberty; religious worship in the time of COVID; freedom of conscience and exemption claims; state aid to religion; religious monuments and ceremonies in public life; and the rights and limits of religious groups.https://scholarship.law.ua.edu/fac_books/1067/thumbnail.jp
Original Discrimination: How the Supreme Court Disadvantages Plaintiff States
Full text linkThe U.S. Supreme Court is famously the nation\u27s top appellate court, but Article III also makes the Court a trial court, giving it original jurisdiction over several categories of cases. One of those categories suits by states against other states-remains exclusive. Thus, when Texas sought to overturn the 202o presidential election by suing four swing states, it had only one court in which to sue. The Court properly rebuffed Texas\u27s claim for lack of standing, but the Justices give even meritorious claims by state plaintiffs short shrift. They have made clear that these suits detract from the Court\u27s appellate role and are better resolved elsewhere, including in the political realm.
The Court uses several discretionary doctrines to avoid hearing these claims. Plaintiff states must seek leave even tofile suit, which the Court usually denies without explanation; must meet an injury-in-fact test more demanding than that imposed on ordinary federal plaintiffs; and, in many cases, must show that a proposed judgment will not be too harmful for the defendant state to satisfy. The Court implements this discretion aggressively. A plaintiff state may thus be denied aforum even when the prospective defendant state has caused significant, but not significant-enough, injury; a plaintiff state may be denied all relief even if it has proven its case on the merits. No other plaintiff in federal court is required to clear such high hurdles.
As many have suggested, the Court\u27s use of discretion in the context of its exclusive jurisdiction potentially violates Article III and the relevant federal jurisdictional statute. But few have noticed the disconcertingly ad hoc nature of the Court\u27s discretionary decisions. Even more troubling no one has seen that these doctrines systematically disadvantage state plaintifs to the benefit of state defendants, and that these disadvantages fall more heavily on certain groups of states, such as downstream states who seek to sue upstream states over crucial water supplies. The Court has stressed that the states must be treated equally as litigants before it, yet its discretionary approach to interstate disputes treats states unequally. The Court\u27s discrimination against state plaintiffs may also make political solutions less likely by creating disincentives for negotiation and by undercutting enforcement of agreements.
The Court has good reasons for avoiding these cases, however. Instead of suggesting doctrinal change to address this original discrimination, I recommend that Congress give the lower courts concurrent jurisdiction over these disputes. Making the lower courts open to these suits gives the Court a principled reason to decline jurisdiction, provides a more accessible forum for state plaintiffs, and, as a result, restores incentives for the political resolution of at least some state-versus-state disputes
Toward a Uniform Classification of Nurse Practitioner Scope of Practice Laws
No full textMany states’ scope of practice laws limits the ability of nurse practitioners to deliver care by requiring physician supervision of their practices and prescribing activities. A robust literature has evolved around examining the role of these scope of practice laws in various contexts, including labor market outcomes, health care access, health care prices, and the delivery of care for specific diseases. Unfortunately, these studies use different, and sometimes conflicting, measures of scope of practice laws, limiting their comparability and overall usefulness to policymakers and future researchers. We address this salient problem by providing a recommended coding of nurse practitioner scope of practice laws over a 24-year period based on actual statutory and regulatory language. Our classification of scope of practice laws solves an important problem within this growing literature and provides a solid legal foundation for researchers as they continue to investigate the effects of these laws
Show Me Your Gun : A Way Forward on Waiting Periods Annual Survey: Gun Reform Symposium
Full text linkCompetition Law as Collective Bargaining Law
No full textAs scholars and policymakers around the world seek a systematic approach to the question of \u27gig work,\u27 one of its regulatory dimensions – the intersection of labor and competition law – points toward a deeper reconceptualization of the conventional legal and economic categories typically brought to bear upon it. A comparative approach to the question of gig work further reveals the variety and contingency of background assumptions that are often overlooked in the context of domestic policy debates. By combining a detailed comparative doctrinal survey of the regulation of non-employee workers in domestic competition law systems with a set of essays reframing the underlying questions raised – in terms of international legal frameworks, freedom of association norms, alternative approaches to law and economics, and more – The Cambridge Handbook of Labor in Competition Law moves the debates over the fissured workplace and the labor – competition law intersection forward in novel ways.https://scholarship.law.ua.edu/fac_bookchapter/1002/thumbnail.jp