Legal Scholarship Repository (University of Tennessee College of Law)
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Child Sacrifices: The Precarity of Minors’ Autonomy and Bodily Integrity After Dobbs
No full textIn Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that there is no constitutional right to abortion. The decision has had a devastating impact on people seeking abortions in many states, and it will have an even more profound effect on the rights and lives of minors. Pregnant minors face greater risks than pregnant adults when they are forced to continue a pregnancy that can harm their physical and mental health and their educational and financial futures. Very young minors are incapable of consenting to the sexual acts that result in pregnancy, but many states require even these young rape victims to sacrifice their health and well-being—and potentially their lives—for the sake of a future child. But the Dobbs opinion also calls into question other constitutional rights of minors. This Article traces the evolution of minors’ constitutional rights and the substantive due process doctrine, then examines the post-Dobbs rights of minors in four areas: (1) abortion, (2) medical decision-making, (3) minors’ parental rights, and (4) minors’ right to choose whether to marry. The Article concludes with a warning about the perils of disregarding the rights of minors solely because they have only recently been recognized. History and tradition should not be the only basis for protecting rights, particularly the rights of a population as vulnerable as minors, and especially when losing those rights gives someone else control over decisions that can irreversibly alter the course of their lives
ABA Standard 303(C) and Divisive Concepts Legislation and Policies: Challenges and Opportunities
No full textThis article by six clinicians discusses the challenges and opportunities of new ABA Standard 303 (c), including the implications of and interactions between Standard 303(c) and “divisive concepts” laws and other threats to representation, academic freedom, and free speech in legal education. The article also highlights the intersection of Standard 303(c) and Standard 303(b)(3), which addresses professional identity formation; discusses opportunities to adapt current curriculum and teaching and create new curricular responses to meet the new accreditation standards and interpretations; and explores ways to resist increasing limitations and find a supportive academic community to sustain hope and resilience
What the Roys Should Learn from the Demoulas Family (But Probably Won’t)
No full textThis essay offers a comparison of the actions taken by members of two families: the Demoulas family, best known as owner-operators of northeastern regional supermarkets, and the Roy family featured in HBO\u27s series Succession. The comparative appraisal focuses principally on the selfish pursuit of individualized financial, social, and familial status by key members of both the Demoulas and Roy families as they relate to the law of business associations (principally corporate law). At the heart of the matter is the legal concept of fiduciary duty. A comparison of the two families’ exploits reveals that lessons earlier learned by the Demoulas family (and observers of the multifaceted, multi-year litigation involving them and their business undertakings) fail to positively impact the destiny and legacy of Succession’s Roy family—at least as far as the Roy family story has been told to date. Although hope may be limited, there is still time for the remaining Roy family members to take heed and make changes.
To execute and comment on the comparison of these two families, the essay starts by outlining relevant information concerning legally recognized fiduciary duties in the corporate (and, to a lesser degree, partnership) contexts. Next, the essay offers background information about the Demoulas and Roy families and their respective businesses (both organized as corporations) and selected business dealings and governance, noting actual and potential breaches of fiduciary duty in each case. A brief conclusion offers comparative observations about the actions taken by members of the Demoulas and Roy families that contravene or challenge applicable fiduciary duties and the opportunity for general reflection. Of particular note is the observation that the ability of corporate directors and officers to comply with their fiduciary duties may become more difficult and complicated when integrating family dynamics and business succession issues into business decisions in a family business context
Patients Versus Profits
No full textPrivate equity (PE) has come to health care. With it: layoffs, cuts, and new pressures for providers, higher prices for payers, and questions from patients about quality and excessive care. PE firms, driven solely by a profit motive, take over health care entities, “lean” them down, load them with debt, and hope to extract a profit for their investors when they sell the hospital, physician group, or nursing home. Their entry into health care has been stealthy but dramatic: upwards of a third of all for-profit hospitals in the United States, and 40 percent of America’s emergency rooms, are now run by a PE company—demonstrating the complete financialization of American health care.
Policymakers, legal scholars, medical researchers, and even senators are engaged on how best to protect America’s health care system from the worst excesses of PE ownership: maybe through tightening corporate practice of medicine rules, deploying antitrust solutions, engaging the fraud and abuse statutes, or trying to ban the practice altogether. For sure, PE ownership puts pressures on the provision of care. And nowhere is that pressure more acute than on the provider—the actor who stands in the breach between the PE owners and patients, feeling the most intense effects of a conflict between producing profits and their duties to their patients.
This piece analyzes this new burden. It highlights the challenges posed by trying to solve the PE problem by using a legal regime that is constituted to insulate clinical decision-making from profit interests. But what to do when, like in PE ownership, those profit interests may control, own, and/or heavily pressure the decision-making of the providers?
The typical tools—the fraud and abuse statutes, and, specifically, the 160-year-old federal civil False Claims Act—face daunting challenges to their efficacy in this space. From the medical necessity determination, to its whistleblowing structure, to causation, application of fraud to PE needs a creative reimagining. This serves as a first important step toward recalibrating the fraud and abuse regime to prevent the worst excesses of PE ownership—and to adequately protect America’s providers, patients, and payers from the exploding intrusion of private profit interests into the sanctified space of health care
Review of Teri McMurtry-Chubb, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy (Lexington Books, 2021)
No full textIn academic studies of the southern plantation, the overseer is often portrayed in simple terms as a lower-class white male who did not himself own land or enslaved persons. Departing from these one-dimensional descriptions, McMurtry-Chubb illustrates the plantation overseer in a much more granular way. In this lucid and engaging monograph, she shows how public and private law helped construct the overseer’s masculine identity in a way that both elevated the social status of elite planter males, and lowered the status of the enslaved people the overseer managed. The overseer’s performance of masculinity was assigned a value (lower than the planter, higher than the enslaved) “based on the imperatives of capitalist and white supremacist structures” (xiii)—another iteration of Du Bois’s critical concept of the “wage of whiteness” and its tendency to undermine class consciousness
Core International Crimes Evidence Database
No full textCore International Crimes Evidence Database (CICED) is a unique, tailor-made judicial database set up by Eurojust to preserve, analyze and store evidence of core international crimes (genocide, crimes against humanity and war crimes). CICED enables the Agency to support national judicial authorities in identifying evidence located in another country that may be relevant to their own investigation. This evidence can be used to corroborate individual offences and events or to unveil systematic actions and provide contextual information
Unsettled in the Courts: the Legal Ramifications of AI in Practice
No full textAI features front and center in courtrooms and firms around the globe, playing the starring role in many substantive legal issues and cases whose outcomes will have significant impact on how law is practiced and how justice is administered. The limitations of AI such as bias, hallucinations and lack of transparency are often elevated as paramount concerns. But not to worry! Humans still have a role to play, especially in light of some of the ethical issues like antitrust collusion, defamation and liability coming to the forefront as a result of active litigation and legislative efforts.This course includes an overview of the issues, the cases and why they\u27re important. Hear perspectives on what the future might look like for practitioners and the ethical implications now and moving forward
Generations in the Legal Writing Classroom
No full textOn May 22-23, Professor Lucy Jewel participated in the Empire State Legal Writing Conference hosted by Fordham Law School. On May 22, by invitation Professor Jewel served as a commenter on two papers presented as part of the Empire State ALWD Scholars Forum. On May 23, Professor Jewel gave an interactive presentation–– Don\u27t Write a Mid Paper –– about reaching Gen Z students in the legal writing classroom