Browsing by Author "Robert H. McKinley School of Law"

Now showing 1 - 10 of 28
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    Against Residency Requirements
    (2014) Pitts, Michael J.; Robert H. McKinley School of Law
    This article argues against laws which mandate that candidates and elected officials reside in a particular geographic area as a condition of election or office-holding (i.e., residency requirements). The article considers various rationales for residency requirements — some of which have been endorsed by federal and state courts — and concludes that those rationales by-and-large do not hold up under scrutiny. The article also considers the costs of residency requirements and concludes that the costs of such requirements outweigh any purported benefits. The article then ponders why residency requirements have continued to exist despite weak justifications for their use, and concludes that residency requirements likely persist because they insulate incumbent partisans from electoral competition. As such, a politics as markets approach might suggest the elimination of residency requirements.
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    Alimony's Job Lock
    (2015) Ryznar, Margaret; Robert H. McKinley School of Law
    In family law, courts often prevent people who owe alimony from changing jobs. If a job change is accompanied by a salary decrease, the court will not necessarily readjust the alimony obligation and instead impute the higher income to the obligor. This Article introduces the term “job lock” to describe this situation, borrowing the term from the health care context, wherein job immobility due to health insurance concerns has received significant scrutiny. This Article draws similar attention to the alimony context, proposing a balancing test to assist courts interested in alleviating job lock under certain circumstances.
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    The Argument for Robust Competition Supervision in Developing and Transition Countries
    (2016) Emmert, Frank; Robert H. McKinley School of Law
    The article discusses first the differences between market economic models, socialist or planned economies, and economies controlled by monopolies or cartels, to make the case for competition supervision. Subsequently it argues for a broad approach to competition super-vision - beyond a narrow view of antitrust law. The second part of the paper discusses monopoly or dominant position and the criteria to measure them. It reviews the reasons for merger control as a preventive step against monopoly or dominant position. Finally it discusses the issues related to collusion in the form of cartels and how to detect them. The third part of the paper focuses on the best ways for developing and transition countries to introduce or reinforce comprehensive competition supervision: Functioning institutions and how they have to be empowered and structured; priorities to be set; how competition oversight has to be embedded in the legal system, including court review; and why effective enforcement is so important and how it can be promoted. In an annex** there are links to some 75 countries which have newly introduced competition laws in the past 25 years and their legislative materials. Finally, there are links to another 30 countries which have substantially revised their legislative bases in the same time frame.
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    The Benefits of Regulatory Friction in Shaping Policy
    (FDLI, 2016) Winters, Diana R. H.; Robert H. McKinley School of Law
    The regulation of food, drugs, and controlled substances in this country is exceedingly complex. Local, state, and federal regulation coexist, and common law remedies supplement positive law. Strata of regulation are necessary because patterns of production and consumption vary by region and demographic, while federal regulation provides regulatory uniformity across the United States. As localities struggle to sustain autonomy in response to local preference while working within a centralized system, and federal agencies struggle to maintain regulatory uniformity to foster a national marketplace, we see interaction and friction between regulatory spheres. While this friction usually becomes apparent through a lens of adversity, it is also a space of foment for policy change and democratic engagement. In this Paper I explore this productive space by looking at several recent instances of action by states in food, dietary supplements, and controlled substances regulation that highlight this friction. An analysis of these actions and the challenges to them provides an opportunity to view the interaction between different levels of regulatory authority and to discuss implications of the judicial review of these enactments. We see complex and shifting alliances working to change policy, and we see benefits in the push and pull caused by these actions.
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    The Bill of Rights as a Term of Art
    (2016) Magliocca, Gerard N.; Robert H. McKinley School of Law
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    Branding Taxation
    (2016) Nguyen, Xuan-Thao; Maine, Jeffrey A.; Robert H. McKinley School of Law
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    The Changing Legal Climate for Physician Aid in Dying
    (2014) Orentlicher, David; Mason, Thaddeus; Rich, Ben A.; Robert H. McKinley School of Law
    While once widely rejected as a health care option, physician aid in dying is receiving increased recognition as a response to the suffering of patients at the end of life. With aid in dying, a physician writes a prescription for a life-ending medication for an eligible patient. Following the recommendation of the American Public Health Association, the term aid in dying rather than "assisted suicide" is used to describe the practice. In this Viewpoint, the authors describe the changing legal climate for physician aid in dying occurring in several states.
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    Economic Inequality and College Admissions Policies
    (2016) Orentlicher, David; Robert H. McKinley School of Law
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    Employer-based Health Care Insurance: Not So Exceptional After All
    (2014) Orentlicher, David; Robert H. McKinley School of Law
    For some time, it has been common for policy experts to criticize the U.S. health care system’s reliance on employer-sponsored insurance. For individuals, access to health care coverage before enactment of the Affordable Care Act (ACA) often depended on employment with companies that provided good benefits. For companies, the connection between employment and health care coverage is thought to impose a competitive disadvantage with overseas counterparts, who do not have to provide health care coverage as an employee benefit. But the problems with employer-based coverage have been overstated and misfocused. While the United States may be unusual in its reliance on employer-sponsored insurance, U.S. employers are not exceptional in terms of their role in financing health care spending. Employers in France, Japan, and the Netherlands also shoulder a high percentage of their countries’ health care costs. Moreover, American businesses likely would not see a decrease in their share of health care spending even if the United States overcame political obstacles and adopted a government-operated, single-payer system. Instead of contributing to the cost of their employees’ private health care coverage, employers would have to contribute to the cost of the payroll or other tax that would fund single-payer care. There is less benefit than meets the eye for employers from an elimination of employer-sponsored coverage. The adoption of ACA diminishes even further the incentives to discard employer-sponsored coverage. Experts rightly criticized the effect of employer-sponsored coverage on workplace mobility. But the "job lock" problem largely disappears under ACA. Now, the entrepreneur will be assured of access to federal subsidies for the purchase of affordable, community-rated insurance. If there is an argument for abandoning employer-based coverage, it lies in concerns about cost containment. While U.S. employers may not bear a disproportionate share of health care costs compared to their overseas counterparts, their total employment costs may be driven up because health care spending is so high in the United States. But even if individuals were to purchase their policies directly from insurers or receive their coverage from the government, concerns about costs would exist. What is more important is that governments in other countries play a much bigger role than does the U.S. government in limiting health care spending. In other words, the role the government plays in regulating health care prices — whether paid by private or public insurers — is much more important than whether employers play a major role in the health care system.
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    Evidentiary Issues and Digital Evidence
    (2016) Boyne, Shawn; Robert H. McKinley School of Law