18265 research outputs found
Sort by
Atrocity Then, Trial Now: The Aesthetics, Acoustics, and Visualities of Prosecuting Oskar Gröning, in Sights, Sounds, and Sensibilities of Atrocity Prosecutions (Mark A. Drumbl & Caroline Fournet eds., 2024)
No full textCharged with aiding and abetting in the murder of three hundred thousand Hungarian Jews deported to Auschwitz between 16 May 1944 and 11 July 1944, Oskar Gröning, the ‘bookkeeper of Auschwitz’, was sentenced in 2015 by the Lüneburg Regional Court to four years’ imprisonment.
After a series of unsuccessful appeals, Gröning died in 2018, at the age of 96, having never spent a day in jail. This contribution unpacks the charges against Gröning and his resultant conviction; examines the involvement of elderly victims as accusers and their roles in this trial; and, ultimately, contemplates how it all ‘looked’ and ‘sounded’. The focus is thus not only on Gröning himself, but on the totality of the trial of Gröning. Throughout, this contribution gazes upon the aesthetics, acoustics, and visualities of this trial and interrogates the representational credibility of dallied proceedings that occur seventy – increasingly, eighty – years after the fact.
This chapter concludes by positing that however absurd it may seem to put a feeble old man on trial, the feebleness that oozes from not prosecuting such a man may prove even more absurd.https://scholarlycommons.law.wlu.edu/fac_books/1212/thumbnail.jp
Supporting Healthy Futures: Capitalizing on Medicaid’s EPSDT Medical Necessity Standard
Get PDFYouth mental health is in crisis. Children report increased rates of suicidal ideology, depression, and anxiety. Diagnosis rates soar. Pediatric mental health care remains difficult to access. When services are accessible, they are costly—often sending families into medical debt.
This Note discusses Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) benefit. Specifically, it studies the EPSDT benefit’s creation, structure, and administration. This Note focuses on the context in which the EPSDT benefit operates, particularly how health care financing models impact benefit administration. It suggests that the EPSDT benefit has the capacity to address crucial gaps in pediatric mental health care. However, this Note summarizes key issues in the benefit’s current administration. Specifically, it articulates how EPSDT’s medical necessity standard is manipulated by states to deny coverage to children, despite their providers’ opinion that such treatment is necessary. It further discusses inconsistencies that exist when courts are asked to apply the EPSDT benefit’s medical necessity standard in coverage determination challenges.
This Note ultimately advocates for consistency and predictability in medical necessity standards, so that children receive coverage for crucial health care services. It urges three possible solutions to address the EPSDT benefit’s current shortcomings: First, it suggests federalizing a definition for medical necessity. Next, it advocates for the establishment of a consistent burden shifting framework to apply in courts where coverage determinations are being challenged on the basis of medical necessity. Finally, it proposes the implementation of a specialized patient advocacy model. Ultimately, these solutions share a common goal: to capitalize on the potential of the EPSDT benefit’s broad promise to cover medically necessary services so that children can access much needed care, particularly given the ongoing youth mental health crisis
More Harm than Good: How State-Sponsored Gentrification Is Driving the Affordable Housing Crisis, and a Call for Accountability and Source-of-Income Protections
Get PDFThe affordable housing crisis in the United States stands at the center of conversations surrounding economic, social, and political reform. The inability of millions of Americans to afford a safe place to live is the result of decades of legislation aimed at fiscally benefitting the individuals developing and managing properties labeled “affordable” as opposed to placing low-income Americans in suitable, long-term housing. This Note argues that state-sponsored gentrification, paired with ineffective housing assistance programs and discrimination, is driving the affordable housing crisis in the Commonwealth of Virginia. This Note studies several policy examples of state-sponsored gentrification in Northern Virginia, Richmond, and Hampton Roads before analyzing the assistance programs that are unable to function alongside the rapid rise in the cost of living. These policies and programs, in turn, result in source of income discrimination for program participants. This Note concludes by calling for a restructuring of affordable housing at a high policy level in addition to the passage of the Fair Housing Improvement Act
Children\u27s Right to Access Potentially Critical Learning: Liberating Youth from Propagation of Structural Injustice
Get PDFOver the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the adoption of my proposed Child’s Interests Principle (“CIP”), which I describe and apply to emerging debates regarding youth education and social oppression. The CIP illuminates these issues and how intricately they are connected to another difficult problem: how society can remediate speech harms equitably. I will elucidate this connection and clarify why plausible consequences of the CIP are a decline in harmful speech and an opportunity to ameliorate social oppression without resorting to coercive measures. Borrowing insights from critical theory, I explain why the law is often an ineffective tool for dismantling social hierarchies and why early, thorough, and accurate education may be the best hope for transforming our society into a reasonably just one
New, Derivative: Third-Party Litigation Finance and Derivatives Regulation
Get PDFLitigation finance is globally abundant and largely unregulated in the United States. The mechanics behind third-party litigation finance are simple: The funder fronts litigation costs in exchange for a promised share of the proceeds if the litigant succeeds. While the normative debate about the value of these contracts in society endures, the litigation finance industry has new players in hedge funds and other opaque investment firms seeking high returns from risky litigation. Many scholars agree on whether to regulate these third-party litigation finance firms. The key debate rages on how to rein in an unbridled industry.
To add to this debate, this Note theorizes a standard third-party litigation finance contract as a derivative contract—a financial instrument that derives value from the performance of an underlying asset. This novel approach examines the structure and features of third-party litigation finance arrangements, particularly in commercial and mass-tort contexts, and argues for their classification as derivatives within the regulatory framework of the Commodity Futures Trading Commission (“CFTC”).
By framing litigation finance contracts as derivatives, this Note proposes a regulatory solution that leverages existing financial structures rather than creating new oversight bodies or legislation. Rather than envisioning a new oversight body or legislation for this type of finance, this Note advocates that the United States leverage its existing financial structures to guide this escalating industry forward while maintaining market integrity. It is high time for regulation of the third-party litigation finance (“TPLF”) industry, and this Note provides a potential solution to a growing regulatory conundrum: using existing tools of financial regulation to address a new problem
Interpreting Religious Doctrine: The Third Rail that Wags the Dog in Religion Clause Jurisprudence
Get PDFThis Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely on both constitutional and often— perhaps more centrally—policy concerns over the competence and prudence of judicial adjudication of religious questions. Moreover, scholars have documented the continued expansion of the Court’s approach, pursuant to which, like the third rail, the interpretation of religious doctrine is viewed as posing a danger to the judicial system; as such, judges should not only steer clear of these questions but should remain far away. Finally, the image of a third rail conveys the notion that, alongside and intertwined with doctrinal Free Exercise and Establishment Clause decision-making, the hands-off approach constitutes a third basic element of contemporary Religion Clause jurisprudence.
Second, likewise as a descriptive matter, characterizing the hands-off approach as the third rail stands for the proposition that the Court’s abiding and increasing reluctance as well as refusal to interpret religious doctrine has developed alongside the other two primary components of the Court’s Religion Clause jurisprudence. Instead, the hands-off approach arguably appears to be driving many of the Court’s decisions in Free Exercise and Establishment Clause cases in a number of meaningful ways. Although not as well-documented as other descriptive aspects of the Court’s approach, close analysis of key elements from modern Religion Clause case law and legislation points to the outsized role the hands-off approach has played in this regard as well.
Third, taking the analysis one step further, as a normative matter, the implied reference to the hands-off approach as “the tail that wags the dog” reflects the contention that the Court’s approach not only drives important areas of Religion Clause jurisprudence, but that it has had unnecessary and problematic—if not detrimental—effects on the Court’s decisions. Specifically, in several areas, close adherence to an expansive hands-off approach has arguably had a negative impact on both the Court’s reasoning and the outcome in important cases. Thus, the hands-off approach stands as the tail vis-à-vis broader concepts and concerns underlying Religion Clause jurisprudence.
Part I of this Article surveys the application and expansion of the hands-off approach in the context of cases revolving around the Free Exercise Clause, the Religious Freedom Restoration Act (“RFRA”), and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). In some instances, a deferential hands-off approach produces overly broad protections of free exercise rights at the expense of valid, counterbalancing governmental and societal interests. Conversely, in other cases, the hands-off approach may result in overly restrictive limits on the scope of the free exercise of religion.
Part II turns to cases of intrachurch disputes. These cases suggest that an overly expansive hands-off approach often works to maintain the status quo, thereby protecting the interests of the party in power while disregarding the concerns of a vulnerable party asserting arguably meritorious claims. This Part also explores the impact of a deferential hands-off approach on Establishment Clause cases, in which the failure or refusal to evaluate and distinguish the religious nature of different forms of religious symbols or activities may too narrowly or, alternatively, too broadly limit governmental conduct.
Accordingly, Part III examines and evaluates common justifications for broad judicial deference to adherents’ characterizations of their religious practices and beliefs. This Part raises questions about whether the justifications are convincing on their own terms and whether they outweigh the negative results that the hands-off approach often produces. Finally, having found that the problematic nature and consequences of an expansively deferential hands-off approach likely outweigh its ostensible justifications, this Part explores potential alternatives to various elements of the current articulation and application of the hands-off approach.
The Article concludes with the observation that the other two basic components of the Court’s Religion Clause jurisprudence— the interpretation and application of the Free Exercise Clause and the Establishment Clause—are currently undergoing fundamental transitions and transformations to a degree unseen in recent memory. At this moment, perhaps the third rail of Religion Clause jurisprudence—interpreting legal doctrine— should no longer remain untouchable. Instead, the Court’s expansive and deferential hands-off approach should likewise undergo a transformation of its own
To Whom Should We Attribute a Corporation\u27s Speech?, in States, Firms, and Their Legal Fictions (Melissa J. Durkee ed., 2024)
No full textThis volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that are usually divided into doctrinal siloes. These include questions about attribution of international legal responsibility to states and state-owned entities, transnational attribution of liabilities to firms, and attribution of identity rights to corporations. Durkee highlights the artificiality of doctrines that construct firms and states, and therefore their susceptibility to change.https://scholarlycommons.law.wlu.edu/fac_books/1194/thumbnail.jp
1983
Get PDFThis Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that statute. While qualified immunity has long served to prevent recovery for abuses by government employees such as law enforcement, it would be unnecessary if the courts simply refused to acknowledge that the Constitution granted protection against those abuses in the first place. And so, imagine a world where the Constitution’s rights guarantees extended only so far as the most cynical originalist would say they do. It might not be too far from our own
Progressive Facade: How Bail Reforms Expose the Limitations of the Progressive Prosecutor Movement
Get PDFProgressive prosecutors have been acclaimed as the new hope for change in the criminal legal system. Advocates and scholars touting progressive prosecution believe that progressive prosecutors will use their power and discretion to address systemic racism and end mass incarceration. Just as this hope has arisen, however, so have concerns that meaningful change cannot be enacted within the criminal system by the very actors whose job it is to incarcerate. This Article highlights these concerns by looking at the bail reforms enacted by four different progressive prosecutors and analyzes the initial promises made, the actions taken to reform and eliminate monetary bail, and the resulting impacts on pretrial incarceration rates and existing racial disparities. This analysis shows how these prosecutors failed to deliver on their promises of reduced incarceration and more equitable treatment in the criminal system, and examines why these efforts often resulted in a shift to more conservative rhetoric and refocused efforts to incarcerate. Finally, this Article will use bail reform to show why progressive prosecutors are not a reliable method for transforming the criminal legal system due to their lack of transparency and accountability, role as political and adversarial actors, and lack of power to dismantle the carceral state