Free Exercise and Substantial Burdens under Federal Law
Mark Strasser
I. Introduction
II. The Ever-Changing Free Exercise Jurisprudence ... A. Reynolds ... B. Modern Jurisprudence Suggesting No Exemptions Are Required ... C. The Jurisprudence Does an About-Face ... D. An Implicit Modification of the Jurisprudence? ... E. Back to Robust Protection? ... F. Tepid Protection?
III. The Congressional Response to the Court’s Free Exercise Jurisprudence ... A. RLUIPA ... B. RFRA ... C. The Circuits’ Quandary
IV. Conclusion
The First Amendment and the Internet: The Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation
Fred B. Campbell
I. Introduction
II. Communications Regulation and Net Neutrality ... A. Regulation of Plain Old Telephone Service ... B. Regulation of Data Processing and Dial-Up Internet Services ... 1. Forbearance from Regulating Enhanced and Information Services ... 2. Regulations Subsidizing the Dial-Up Internet ... a. Common Carrier Resale ... b. Access Charge Exemptions ... C. Pre-Common Carrier Regulation of Broadband Services ... 1. Competition Begets Net Neutrality Theory ... 2. Initial Broadband Classification Decisions ... 3. Adjudicatory Net Neutrality Decisions ... 4. First Internet Order ... D. Reclassification of Broadband as a Common Carrier Service
III. Dissemination of Mass Media Communications ... A. Application of the Press Clause to Dissemination ... B. The Distinction between Speech and Conduct ... C. The Distinction between Mass Media and Common Carrier Communications ... D. The Implications of Denying First Amendment Protection to ISPs ... 1. No Constitutional Right to Access Mass Media Communications Systems ... 2. Lack of Standing to Invoke First Amendment against Government Censorship
IV. Level of First Amendment Scrutiny ... A. ISPs Disseminate Print Media ... B. The Rules Are Content-Based ... 1. The Rules Are Content-Based on Their Face ... 2. The Purpose of the Rules Is Content-Based ... 3. The Gatekeeper Theory Is Content-Based ... C. The Rules Are Speaker-Based ... D. Cable Television Precedent Is Inapplicable ... E. The O’Brien Distinction between Speech and Conduct Is Inapplicable
V. Application of First Amendment Scrutiny ... A. Assuring a Diversity of Non-ISP Speech ... B. The Gatekeeper Theory Is Unsupported by Substantial Evidence ... C. The Gatekeeper Theory Is Inconsistent with Established Precedent ... 1. Telegraphy and Telephony ... 2. Broadcast and Cable Television ... 3. Mail Carriage ... D. Issue Preclusion Does Not Apply ... E. There Is No Factual Finding of Scarcity
A Fair Competition Theory of the Civil False Claims Act
bhildebrand
On December 4, 2015, the Supreme Court granted certiorari in Universal Health Services v. United States ex rel. Escobar, a fraud case that may reshape the future of $1.9 billion of annual healthcare fraud recoveries in the United States. Julio Escobar and Carmen Correa lost their daughter to a seizure while she was under the care of Universal Health Services. Escobar and Correa subsequently learned that the staff caring for their daughter were not licensed or certified. They filed a whistleblower action under the False Claims Act alleging that Universal Health had defrauded the government, which had paid for their daughter’s medical care. Federal courts have expressed uncertainty as to whether Universal Health’s behavior legally constitutes fraud. For example, one court has held that lying about a supervising physician’s credentials does not constitute fraud, while another court has held that lying about a physician provider does constitute fraud under the statute. The Supreme Court’s decision may help clarify the presently convoluted fraud analysis.
In A Fair Competition Theory of the Civil False Claims Act, a timely article published by the Nebraska Law Review, Professor David Kwok examines the present conflicting fraud doctrines that courts have used and proposes a new standard to help all parties understand when fraud has occurred. He advances the standard of fair competition as the basis for fraud liability under the False Claims Act. If competitors are capable of complying with regulations, it is unfair for some companies to knowingly violate those same regulations while escaping fraud liability under the statute.
The Collective Fiduciary
Lauren R. Roth
Can fiduciaries be made to serve public goals? The movement under the Patient Protection and Affordable Care Act (“ACA”) toward universal access to health insurance requires us to focus on the fiduciary relationships between large organizations providing access to healthcare and the populations they serve. These relationships have become a collective undertaking instead of a direct, personal relationship. In this Article, I introduce the concept of the collective fiduciary in response to the shift toward uniform, national goals in the realm of health insurance and healthcare. Only through a collective approach can we hold fiduciaries accountable for the welfare of many instead of one or a few individuals. While other scholars have focused on the individual whose fortunes or health are controlled by a fiduciary, this has made it difficult to collect information about fiduciary actions and obtain consistent and coherent decisions from fiduciaries. My argument is that this is not a problem that can be fixed at the level of the individual fiduciary or individual beneficiary. I examine the expansion of the role of the fiduciary as a result of growing demand for private welfare benefits in the United States. My concern is with the expansion of health insurance and the administration of health benefits. If patients are denied benefits, then they are effectively denied access to service providers. In a space where the government has been, until now, largely absent both by choice and because of a lack of agreement on policy direction, individual decisions by fiduciaries add up to the only large scale policy existing for private benefits. Fiduciaries can and will undo the goal of expanding access to healthcare under the ACA unless ERISA’s fiduciary regime (the example I focus on in this Article) is altered. Though I explore several possible solutions, I ultimately argue that fiduciary duties are only meaningful when denials of benefit claims are supervised and capped by government actors.
The Concept of Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in the Enforcement of Private Legal Arrangements
Farshad Ghodoosi
The doctrine of public policy is a channel through which public law enters private law and bars it from actualizing its normal legal consequences. Although public policy is an old doctrine in common law and other legal systems, it is not clear which aspects of public law can enter the arena of contract (private) law and make it unenforceable. The phrase public policy is used and pled in various national and international tribunals on a daily basis. Despite its importance, the literature surrounding the doctrine of public policy is extremely limited. This Article first briefly traces the genealogy and paradigm shifts of the doctrine of public policy in the history of common law. Subsequently, it scrutinizes the ramifications emanating from developments of legal theory as well as the emergence of the welfare state in transformation of the notion of public policy. It then explains the doctrine of public policy from the law and economics perspective and shows its shortcomings. In the last section, the Article argues that the concept of public policy is a not a single concept but consists of three distinct strands—public interest, public morality, public security—each with a separate pedigree and logic requiring a separate method for its analysis. The public interest category refers to instances where the public policy exception can be determined employing cost-benefit analysis by weighing the interests of private parties versus societal interest. The second strand, public morality, attempts to safeguard the communal values by allowing the judiciary to lend its enforcement apparatus to private legal arrangements that are injurious to common morality. Lastly, public security is structured around the exceptionalist logic of modern statehood, which aims to protect states’ survival interests. This Article argues that in instances where public morality and public security are seriously at stake, private law is subsumed by the mandate of public policy. However, in the majority of cases falling under the category of public interest, courts should follow the balancing approach with the single test of avoiding negative externalities.
Intersectionality at the Intersection of Profiteering and Immigration Detention
Mariela Olivares
This Article presents an original exploration of the connections between the corporatization of mass immigration detention, the societal and political pressures for stricter immigration law and policy, and the subordination of immigrants. In short, the social and political subordination of immigrants, who embody the marginalized identities of criminal, non-citizen, and person of color, feed the profit-seeking carceral machine. To illuminate this practice, the Article uses as a case study the increased detention of mothers and children immigrants, who migrated to the United States in record numbers in 2014. This intersection between corporate profit models—immigration law and policy—and critical legal studies has not yet been fully explored in the scholarly literature. Upon setting a foundation regarding the history and constitutional underpinnings of immigrant detention and presenting a snapshot of the current state of detention, the Article then focuses on the corporatization of incarceration and immigration detention. Further, the profiteering—immigration detention intersection is placed within the context of subordination theory. Finally, the Article concludes by providing paths to legislative and regulatory reform and to modes of advocacy to disrupt the entrenched intersectional foundation.
An Infamous Case: How the Iowa Supreme Court’s Minimalist Approach Forced Everyone to Come Back for More in Chiodo v. Section 43.24 Panel, 846 N.W.2d 845 (Iowa 2014)
Michael S. Boal
I. Introduction
II. Background ... A. Chiodo v. Section 43.24 Panel Facts ... B. Chiodo v. Section 43.24 Panel Opinions ... C. Judicial Minimalism
III. Analysis ... A. Dual Disorder: Two Levels of Minimalism ... B. More Harm than Good: Four Indicators ... 1. Final Arbiter of Constitutional Rights ... 2. Application of Stare Decisis ... 3. Repeat Players and Institutional Relationships ... 4. Increased Future Litigation
IV. Conclusion
A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students
Brian J. Fahey
I. Introduction
II. Three Models for Regulating Juvenile Conduct ... A. The Criminal Punishment Model ... 1. Rights Attendant to the Criminal Punishment Model ... 2. A Framework for Recognizing Criminal Punishment ... B. The Juvenile Justice Model ... 1. Rehabilitative Beginnings ... 2. Recognizing Due Process Rights in Juvenile Justice ... 3. A Retributive Renaissance in Juvenile Courts ... C. The School Discipline Model ... 1. Sparse Constitutional Origins ... 2. Students’ Rights and Punishment in Schools ... a. Goss v. Lopez ... b. Ingraham v. Wright ... 3. What Goss and Ingraham Tell Us about Students’ Rights in School
III. The School-to-Prison Pipeline ... A. Zero-Tolerance Policies ... B. Referral of Students to the Juvenile System for Misconduct in School ... C. The Rise of the School Resource Officer
IV. The Negative Consequences of the Pipeline ... A. Counterproductive Results ... B. Disproportionate Effect on Minority and Learning-Disabled Students ... C. Discipline without a Purpose
V. Conclusion
Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources
Elizabeth Ann Kronk Warner
In an age when vulnerable tribes and Native communities around the country are threatened by the impacts of climate change, advocates seek new and innovative legal tools to provide protection for endangered resources. To date, legal tools such as litigation and adaptation plans have been used with varying levels of success. For the first time, this article considers whether tribal treaties with the United States may prove helpful in protecting threatened resources. Treaties historically played an important role for many tribes, as they have a profound cultural connection and are a powerful expression of tribal sovereignty. Also, when courts find treaties applicable, tribes have generally been successful in protecting the resources at issue. In considering whether such historical documents may be applied in the climate change context, this article begins by looking at the treaty language of specific tribes, which have expressed interest in shielding treaty-protected resources, and also methodologies of interpreting treaties. The article then goes on to consider how such treaty language might be used in a legal claim against the United States, speculating as to uses under both domestic and international law. Ultimately, the article concludes that it may be possible to use treaty language to protect resources threatened by climate change under certain circumstances.