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An Interview with Toni M. Massaro
Get PDFLucky, lucky, lucky. -- Toni M. Massaro
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Toni Massaro was interviewed in the production studio of the James E. Rogers College of Law, University of Arizona in Tucson, Arizona. It began at 1pm Arizona time and the interview went approximately one hour. During that time, Massaro covers her high school and college education and how she transitioned to law and why. She also discusses why she wanted to go to William & Mary, her relationships with her fellow students, relationships with faculty and academics, and her transition into practice. She also covers her teaching and deanship and how her time at William & Mary influenced that work.https://scholarship.law.wm.edu/oralhist_all/1003/thumbnail.jp
Smart Wearables: The Overlooked and Underrated Essential Worker
Get PDFThis Note argues that the FDA should revamp its criteria for regulating medical devices to unambiguously include smart wearables. Specifically, this Note calls for the FDA to amend its definition of “medical device” to focus on what a device is technologically capable of rather than its intended use.
Part I will examine the established legislation regarding medical devices; in particular, it will examine the relationship between FDA regulations and the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and argue that when taken together, HIPAA creates a strong presumption that smart wearables should be regulated by the FDA. This Part will also discuss a recent legislative proposal that supports the call for smart wearable regulation. Part II will address alternative approaches for the proper regulation of smart wearables. Finally, Part III proposes a unique solution for regulating smart wearables as medical devices and will discuss various policy implications and will address and rebut counterclaims. Additionally, this Part considers the argument that smart wearables fit within the scope of the FDA’s current definition of a medical device and identifies loopholes that prevent them from being sufficiently regulated. This Part will conclude by providing examples of modernized smart wearables that demonstrate the need for smart wearables to be subject to the FDA’s medical device regulations.
This abstract has been taken from the author\u27s introduction
Supreme Court Cases that Persist: The Japanese American Cases
Get PDFAs with any human institution, the United States Supreme Court makes errors that, over a period of time, need correction. By focusing on the Japanese American cases, Hirabayashi (1943) and Korematsu (1944), the record is particularly remarkable. Over many decades the Supreme Court had abundant evidence that the two decisions were defective. It was not until June 26, 2018, in Trump v. Hawaii, that the Supreme Court announced that “Korematsu was gravely wrong the day it was decided.” If Korematsu was that deficient, why did it take the Court seventy-four years to admit it? Moreover, what about Hirabayashi? The decision in 2018 did not address the case. Is Hirabayashi still good law? Federal judges, legal scholars, and reporters often advance the position that the Supreme Court is the final arbiter of the Constitution’s meaning. In 1953, Justice Robert Jackson promoted the doctrine of judicial finality with this statement: “We are not final because we are infallible, but we are infallible only because we are final.” Perhaps a clever and witty turn of phrase, but at no time has the Supreme Court ever been either final or infallible. That fact should have been obvious to Jackson. [...] The record demonstrates that constitutional law is part of a broad dialogue that includes all three branches, fifty states, scholars, and the general public. Corrections are often needed to take account of changes in public attitudes. In a system of self-government, these shifts can generate new constitutional values. Alexander Bickel noted in 1962 that the process of developing constitutional principles in a democratic society “is evolved conversationally not perfected unilaterally.” Supreme Court decisions lack finality in part because human institutions, including the judiciary, are prone to miscalculation and error. Accordingly, such rulings are often challenged and reversed. This abstract has been taken from the author\u27s introduction
The Illusion of Due Process in School Discipline
Get PDFLong-term suspensions and expulsions can be enormously consequential for students and their families. Not only do exclusionary disciplinary measures directly result in lost learning opportunities for children, but school discipline decisions can also result in significant collateral consequences. These consequences range from lower rates of graduation and higher rates of contact with the criminal justice system to disruptions in foster care placements, violations of juvenile probation, and even possible immigration consequences for undocumented students.
The Supreme Court has recognized the significance of suspensions and expulsions, requiring due process for such exclusionary discipline measures. But the Supreme Court has never explained what process is actually due for long-term suspensions and expulsions. Lower courts have been left to fill in the gaps and, in doing so, have generally shown enormous deference to school officials, upholding hearing procedures that amount to kangaroo courts. For example, courts have found that a student facing exclusionary discipline has no right to know the identity of her accusers, confront witnesses, or have notice of the specific charges against them.
This Article argues that courts analyzing student due process cases have misunderstood the interests at stake in exclusionary discipline, undervaluing a child’s interest in attending school and overestimating a school’s capacity or inclination to adjudicate school discipline issues fairly. Drawing on case law, research into the consequences of exclusionary school discipline, and case studies from the Education Advocacy Clinic at the University of Arizona, James E. Rogers College of Law, this Article illustrates the high stakes for students facing suspensions and expulsions— and how brittle the due process protections are. As the Article shows, courts are wary of supplanting a school’s judgment in school discipline matters, assuming schools will adjudicate discipline issues fairly so that additional process for students is not needed. But this assumption is wrong.
A comparison to special education law demonstrates that courts do have reason to be wary of a school’s decision-making in school discipline matters. Federal special education laws demonstrate a well-earned skepticism toward school officials and a concern that, without oversight, schools will exclude children they deem difficult to educate. In response, these laws establish detailed statutory requirements, numerous procedural safeguards, and regulatory oversight regarding the education of children with disabilities. This framework stands in stark contrast to the deference afforded school officials in the discipline context and shows that courts are naive to assume school officials will adjudicate discipline issues fairly without more due process protections.
This Article re-envisions what process should be due to students facing exclusionary discipline under existing Supreme Court precedent and provides specific recommendations for procedures that should be required by the courts. Due process— or even basic fairness—can feel far off for many students facing exclusionary discipline. This Article provides a path forward
Preparing for the Flood: Virginia Local Governments\u27 Stormwater Management Liability
Get PDFThis Note explains that modern interpretations of Virginia Code § 15.2-970 have made Virginia municipalities immune to tort suits arising from the negligent maintenance of stormwater systems. Due to the Virginia Supreme Court’s holdings in Livingston v. Virginia Department of Transportation and other inverse condemnation suits, localities may be found liable when their stormwater management decisions cause property damage. However, following the Court’s holding in AGCS Marine Insurance Co. v. Arlington County, which prevented inverse condemnation claims arising from municipal negligence, residents are still unlikely to find legal redress for negligent stormwater management that results in property damage. Therefore, this Note argues that Virginia municipalities are broadly protected from lawsuits arising from a failure to plan for climate change’s effect on local stormwater loads. It then demonstrates, through an examination of several Virginia cities and counties that are working to upgrade their stormwater infrastructure, that Virginia localities in general are nonetheless planning for increasing stormwater loads in several distinct ways.
First, this Note discusses the growing threat climate change poses to Virginia’s stormwater infrastructure as well as common stormwater problems Virginia’s localities face. Next, this Note discusses how localities currently manage stormwater and the common law framework that traditionally guided construction and maintenance of those systems. It explains the modern interpretation of Virginia Code § 15.2-970 that conclusively shields localities from stormwater-related tort liability. Then, this Note addresses several recent Virginia Supreme Court cases that sustained inverse condemnation actions against localities and the Virginia Department of Transportation when flooding, caused by poorly designed stormwater infrastructure, damaged property. It analyzes AGCS Marine Insurance Co.’s limiting effect on inverse condemnation claims and argues that those claims are also likely to fail in the climate change context. This Note examines Vermont’s stormwater liability framework, which provides residents some redress when stormwater injures them or damages their property. Finally, it discusses how three Virginia municipalities are taking proactive approaches to increased stormwater volume by updating infrastructure and creating programs to protect citizens and their homes.
This abstract has been taken from the author\u27s introduction
The Factor/Element Distinction in Antitrust Litigation
Get PDFMost price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.
Several federal courts, however, have improperly converted some aspects of antitrust law’s factor test into an element test, which raises the plaintiff’s evidentiary burdens in a way that protects price-fixing conspiracies from antitrust liability. Too often, judges have suggested that the absence of a particular plus factor should constitute evidence that no conspiracy exists or ever existed. These plus factors include: concentrated market structure, cartel enforcement mechanisms, stable market shares, intercompetitor communications, and simultaneity of price increases.
This Article performs a three-part analysis for each of these plus factors. First, it describes why the plus factor is probative of collusion and, thus, a plus factor. Second, it illustrates how some courts have distorted the plus factor’s probative value by treating its absence as evidence that no collusion has taken place. Third, using empirical examples and economic theory, it explains why price-fixing conspiracies can exist and thrive even without generating evidence of the particular plus factor that some courts have treated as quasi-elemental.
The plus-factor framework for proving collusion through circumstantial evidence only works if judges properly apply, understand, and interpret plus factors. When courts treat an absence of evidence as evidence of absence, they craft a roadmap for price-fixing cartels to harm consumers while evading antitrust liability. This undermines all the goals of antitrust: compensating victims of price fixing, disgorging ill-gotten gains, and deterring future violations
Turning Sanctions into Reparations: Lessons for Russia/Ukraine
Get PDFWithin the past year, members of Congress have introduced nearly a dozen bills to make Russia pay for its military aggression against Ukraine. This Essay argues that none of the bills are satisfactory because they would either violate international law or fail to deliver meaningful compensation to Ukraine. Instead, the Essay urges policymakers to use economic sanctions as leverage to compel Russia to make reparations through an international claims-settlement process
