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Moran, Kentucky Ass\u27n of Health Plans, and Davila: The (R)Evolution of ERISA Preemption
No full textThis article chronicles the Supreme Court\u27s recent pronouncements on the issue of ERISA preemption and attempts to assess what impact the varied pronouncements will have on the legal landscape. Specifically, the article analyzes the impact of Rush Prudential HMO, Inc. v. Moran, Kentucky Ass\u27n of Health Plans, Inc. v. Miller ( KAHP ) and Davila. Although the cases address different aspects of preemption, together, the three provide a panoramic landscape of what the Supreme Court believes the appropriate emphasis of ERISA preemption should be. Part II of this article explores the background of ERISA and its preemption provisions. Part III recounts the growth of modem health care and the rise of managed care. Part IV discusses the Supreme Court\u27s ERISA preemption jurisprudence, including the Court\u27s most recent three cases of Moran, KAHP, and Davila. Part V attempts to analyze these three cases, given the different areas of preemption they represent. Part VI presents a proposal on how to fix the obvious problems caused by preemption. The proposal discusses how Congress can specifically provide that claims similar to the one described above are eliminated from ERISA\u27s reach and left to the states to regulate and litigate. Finally, the article concludes in Part VII
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 17, Issue 3, Spring 2005
Therapeutic Jurisprudence in an Interprofessional Practice at the University of St. Thomas Interprofessional Center for Counseling and Legal Services
No full textThe Interprofessional Center for Counseling and Legal Services (the Center or Interprofessional Center ) is a joint effort by the School of Law, the School of Social Work and the Graduate School of Professional Psychology at the University of St. Thomas\u27 in Minneapolis, Minnesota. In the Center, law, social work and psychology students gain practice skills by working with clients under the supervision of experienced supervisors. The Center provides pro bono professional services to low-income, working poor and other underserved populations who would otherwise have no access to such assistance. The same can be said of many clinical programs. In addition, the Interprofessional Center strives to educate future professionals (particularly lawyers, to whom it does not always come naturally) in a fundamentally therapeutic mindset by addressing client problems and concerns through its focus on the opportunities and challenges of interprofessional collaboration
Trends on (Inter-Country) Adoption by Gay and Lesbian Couples in Western Europe
No full textIn this article I will analyze Western European developments in the field of (inter-country) adoption by homosexuals. Some countries have accepted the legal possibility of adoption by homosexual individuals and/or couples, although this does not mean that in all cases children can be adopted by lesbian and gay persons. There are several restrictions on intercountry adoption. The jurisprudence of the European Court on Human Rights with regard to adoption by homosexuals is still rather restrictive. In this article, I will analyze the following questions: whether it is a human right to adopt or to be adopted; and, if adoption should be promoted in other countries as well. What are the positive and the negative legal and social consequences of adoption by gay and lesbian couples? I will first start with a small introduction of the legal institution of adoption. Then I will describe the form of adoption in the Netherlands, and after that, I will give an overview of homosexual adoption in Western Europe
Reinforcing Title VII with Zero Tolerance Rules
No full textEmployment discrimination remains a difficult and stubborn workplace problem for both employees and employers. Some of this wrongful conduct reminds us of terrible historical events. For example, in one case black workers reported being compared to slaves and monkeys. In another case, black workers complained about repetitive racial slurs, acts of intimidation, and assaults with bats. One Florida case included complaints from black workers about a hangman\u27s noose, prominently displayed in the company\u27s stockroom where it remained for many years. A black worker was told that the noose was used to hang blacks. These cases, along with equally offensive acts of sexual harassment, remind us that American workers retain a strong taste for discrimination. Discrimination is occurring at every level, from the shop floor to the boardroom. Despite the extensive array of laws prohibiting discriminatory employment practices, discrimination remains a fixture in the workplace. This reality humiliates employee victims and exposes employers to liability. This liability, in part, forces employers to consider ways of limiting discriminatory behavior in the workplace. Many employers have decided that the costs and harm associated with discrimination can be controlled by zero tolerance rules. Along with these rules, employers often provide education and training about Title VII of the Civil Rights Act of 1964 (Title VII), and the employer\u27s expectations with respect to workplace behavior. Employers often discharge violators of zero tolerance rules on the first offense. Critics of zero tolerance rules argue that such severe punishment can disregard employees\u27 job expectations and interests, particularly in a unionized setting where the employer needs just cause to discharge an employee. They also argue that such policies can polarize the workplace and deny employees their statutory remedies. Further, they argue that the education and training that normally accompany such rules are not effective in changing workplace behavior. The basic premise of this article is that regulation, public or private, can affect workplace behavior. This article evaluates the potential of private regulation, that is, zero tolerance rules to deter and reduce workplace discrimination. Part II traces the evolution of equal employment laws from Reconstruction to Title VII and argues that Title VII has failed to achieve its deterrence and compensation goals. The statute\u27s preoccupation with intent proof requirements, its stringent procedural burdens on employees, and its limited remedial potential give discrimination victims only partial remediation. Moreover, although courts have interpreted the statute to permit narrow forms of affirmative action, it does not assure fair treatment at the outset. As such, the statute has had only a limited effect on workplace culture. While statutory prohibitions remain the foundation of workplace equality, the task of promoting or achieving fair treatment cannot be left to the law alone. Part III looks at zero tolerance rules as a complement to Title VII. It shows the operation of such rules in a variety of labor and employment contexts, and argues that such work rules have helped establish workplace culture on issues such as stealing, drug and alcohol abuse, fighting or violence, and sleeping on the job. Part IV looks at the proliferation of zero tolerance rules regulating the behavior employment discrimination laws prohibit. It considers the interests of employees in not being subjected to arbitrary discipline, particularly when they are protected by contract, and argues that such rules can help create a fair treatment culture and inculcate the values incorporated in employment discrimination laws. It argues further that an employee\u27s first priority or expectation is fair treatment, rather than compensation for abusive treatment; this is consistent with Title VII\u27s goals
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 18, Issue 2, Winter 2005
The Evolution of the Legal Concepts of Family and Marriage in the EU Legal System and Its Impact on Society
No full textOne particular aspect that we will examine is the emergence of new family forms in same-sex marriages. If the fundamental concepts of marriage are redefined, other unions or family types would be placed on par with heterosexual marriages, enjoying the same benefits the traditional family has provided over the course of humanity. This redefinition of marriage would undermine the concept of the traditional family and ignore its necessity for the benefit to mankind
Making the Case: Therapeutic Jurisprudence and Problem-Solving Practices Positively Impact Clients, Justice Systems and Communities They Serve
No full textWhat is becoming known as Therapeutic Jurisprudence or client-centered representation is new to most line-lawyers or leaders of traditional public defense programs. However, many of these practices have been incorporated into the daily practices within defender offices for decades. Strategies that secure better bonds or sentences lead many public defense programs to seek early entry into the jails and to verify client information. Efforts to learn about beds for their clients that were unknown to swamped probation programs have lead offices and individual defenders to actively participate and create alternative treatment programs. Overworked offices hire less expensive sentencing specialists or have their investigators develop plans for their clients at sentencing. We will discuss one office that has been doing just this for some time and has a track record on the more traditional statistics used by policy makers to measure what they believe is the test of whether a program is working. We look at data gathered by the Michigan Department of Corrections, which tracks how many defendants are sent to prison, how many receive jail sentences, and from those who would have gone to prison, how many failed on probation. Before looking more closely at this data, it is important to consider briefly a few components of defender programs that engage in problem-solving lawyering and embrace the fundamentals of Therapeutic Jurisprudence
In a Dark Wood: Dante as a Spiritual Guide for Lawyers
No full textIn this paper, I propose to focus on three stages in the Divine Comedy that represent three stages of the spiritual journey. First, being lost. The poem opens with Dante lost in a dark wood, corresponding to the spiritual situation of many lawyers today. Recall the title of Dean Kronman\u27s book: The Lost Lawyer. Second, taking the journey. Dante moves from the dark wood through hell and purgatory on his journey of self-discovery. The lessons he learns can help anyone setting out on the spiritual journey. Third, arriving home. Dante ends his poem with a vision of what it means to find oneself and one\u27s true destiny. Here we catch a glimpse of what a reinvigorated and reformed legal practice would look like. Let\u27s consider each of these three stages in turn
Empirical and Theoretical Perspectives from Social Science on Gay Marriage and Child Custody Issues
No full textResearch on lesbigay parenting issues is reviewed with an in-depth focus on a few examples of past research and a review of the merits of social science research cited recently by the American Civil Liberties Union in support of gay parenting rights. Those who have reviewed the literature have come to startling different conclusions. Neither side has fully grasped some of the limitations of certain key research studies. Some errors are such that one might wonder if peer review procedures had somehow failed. An analysis of a recent paper on same-gender sexual abuse reveals mixed findings. It appears that a significantly higher percentage of gay and lesbian parents may abuse foster children but at the same time, a majority of such parents probably do not abuse foster children. A new social science mid-range theory for explaining stigma against homosexuals and for explaining heterosexual concerns about gay marriage is presented, labeled differential risk theory, a subset of social exchange theory. There is a large body of research on the legal issues associated with gay marriage and child custody. Other writers have provided interesting and open-minded commentary from a religious perspective. Being neither a lawyer nor a cleric by profession, I must put my hope in reader agreement with Cere, who argued that: [m]arriage and family are too important as social institutions, affecting too many people, especially children, for basic decisions about their legal underpinnings to remain the private province of legal experts alone. There is an urgent need for the involvement of disciplines besides the law to identify, understand, and critique the legal theories of marriage and family life that are helping to shape new trends