How Affidavit of Merit Requirements are Ruining Arizona’s Medical Liability System

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Mary Markle. The purpose of the civil justice system is to compensate those who were wrongfully injured and deter unreasonably risky behavior. More specifically, tort claims for medical malpractice aim to compensate patients who are injured due to negligent care and improve health care by deterring doctors from engaging in negligent care in the future. Despite these noble goals, the medical malpractice legal regime has come under attack in recent years. Opponents of the system claim medical malpractice cases are to blame for skyrocketing health care costs and a shortage of physicians. In response to these accusations, many state legislatures—including Arizona’s—have passed regulations to reform medical liability. Proponents of these regulations hope that limiting medical liability will lead to decreased insurance premiums, which will ultimately lead to lower health care costs and…
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Principled Prevention

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Timothy F. Malloy. Is an ounce of prevention really worth a pound of cure when it comes to the regulation of chemicals? If you believe the aspirational statements of legislators, regulators, public health scientists and others, the answer is a definite “yes.” Yet when you look at the structure of regulatory programs and actual practices on the ground, that ounce is hard to find. Chemical policy in the United States essentially relegates prevention of chemical exposures to voluntary programs and initiatives. Mainstream regulation focuses instead on managing exposures, largely relying on control technologies to capture or destroy emissions and discharges of hazardous chemicals. This article asks what a mainstream prevention-based regulatory system would look like. It presents a typology of prevention-based regulatory approaches and a set of principles for evaluating…
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Whose Sovereignty? Tribal Citizenship, Federal Indian Law, and Globalization

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Stacy L. Leeds & Erin S. Shirl. This Article is adapted from a speech given by Stacy Leeds at the Sixth Annual Canby Lecture Series held at Arizona State University’s Sandra Day O’Connor College of Law. Stacy Leeds is the Dean of the University of Arkansas Law School, which recently launched a new Indigenous Food and Agriculture Initiative to complement their long-standing LL.M. Program in Agricultural and Food Law. In her presentation, Dean Leeds draws on her experience both as an Indian Law professor and tribal judge to reflect on how tribal governments are viewed from the outside and how tribes might evolve the dialogue and interact with external audiences including other sovereigns across jurisdictional lines. Full Article
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What’s Age Got to Do With It? Supreme Court Appointees and the Long Run Location of the Supreme Court Median Justice

2014, Print, Volume 46 (2014) Issue 1 (Spring)
Jonathan N. Katz & Matthew L. Spitzer. For approximately the past forty years, Republican Presidents have appointed younger Justices than have Democratic Presidents. Depending on how one does the accounting, the average age difference will vary, but will not go away. This Article posits that Republicans appointing younger justices than Democrats may have caused a rightward shift in the Supreme Court. We use computer simulations to show that if the trend continues the rightward shift will likely increase. We also produce some very rough estimates of the size of the ideological shift, contingent on the size of the age differential. In addition, we show that the Senate’s role in confirming nominated Justices has a significant moderating effect on the shift. Last, we consider the interaction between our results and the…
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Why Serve Your Country When You Can Lie About It?–This Message Brought to You by the United States Supreme Court

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
William D. Hathaway. “The [Medal of Honor] is the highest and most prestigious U.S. military medal.” The criteria for awarding the Congressional Medal of Honor are strict and similar to the standard that must be met by a prosecutor’s evidence in a criminal proceeding. Military honors have a long history of being conferred to individuals who distinguish themselves from the ranks. In America, the first honor of this type was established by General George Washington, who proclaimed in his general order that “[s]hould any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished. On the other hand it is expected those gallant men who are thus designated will on all occasions be treated with particular confidence and consideration.” Full Article
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Regulators as Market-Makers: Accountable Care Organizations and Competition Policy

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Thomas L. Greaney. Of the many elements animating structural change under health reform, Accountable Care Organizations (ACOs) have drawn the greatest attention. Supported by scholarship from health policy experts and positioned as the Affordable Care Act’s centerpiece for systemic reform, the concept came to represent a potential cure-all for the disorders plaguing American health care. While the program, entitled the Medicare Shared Savings Program (MSSP), focuses on Medicare payment policy, its objectives extend much farther. The ACO strategy entails regulatory interventions that at once aim to reshape the health care delivery system, improve outcomes, promote adoption of evidence-based medicine and supportive technology, and create a platform for controlling costs under payment system reform. Ambitious aims to be sure. Implementation, however, has proved a wrenching process. Because the law entails seismic…
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What the QSA Means for the Salton Sea: California’s Big Blank Check

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Timothy N. Forsman. The taming of the American West, and the utilization of its great rivers, led to an era of unparalleled prosperity and growth for the Nation. However, the era of the endless frontier has long since passed, and today, conflicts over vital water rights in the West continue to intensify. Because river systems cannot furnish an unlimited supply, demand will eventually outpace supply. The first casualties of a growing water shortage are already emerging, and the Salton Sea (“the Sea”) is among the first to bear the brunt of this shortage. Without further intervention, the Sea will become one of the largest ecological disasters in modern American history. Beginning in 2017 the Sea will lose up to 23% of its incoming water supply, resulting in a dramatic reduction in…
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Federal Environmental Laws Affecting Real Estate: A Review of Clean Water Act Section 404, the Endangered Species Act, the National Environmental Policy Act, and Section 106 of the National Historic Preservation Act

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Robert D. Anderson, Norm James, Dawn Meidinger & Greg Adams. Standard practice for conducting due diligence as part of real estate trans-actions has long included an assessment of the potential for a site to have “recognized environmental conditions,” i.e., hazardous substances or petro-leum products released to the environment. In addition to this evaluation, sound due diligence practices should include an evaluation of the potential for federal regulatory requirements to significantly affect value. This paper will look at four general areas: the Clean Water Act1 (“CWA”), the Endan-gered Species Act2 (“ESA”), the National Environmental Policy Act3 (“NEPA”) and the National Historic Preservation Act4 (“NHPA”). Full Article
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The Cost of Ignorance: Closing the Deal

2014, Past Issues, Print, Volume 46 (2014) Issue 2 (Summer)
Sherri Zendri. The alphabet soup of federal and state statutes and rules regulating the purchase and sale of property can quickly become overwhelming. Nevertheless, parties to commercial and residential real estate transactions ignore such laws at their own peril: failure to comply with these regulations, whether intentional or not, can impose serious costs on all parties involved. This Article focuses on some practical approaches to due diligence inquiries and allocations of potential liabilities, and includes only brief comments on some of the legal liabilities regarding environmental disclosure requirements in real property transactions. The main take-away from this article is that the Arizona Department of Environmental Quality (“ADEQ”) is the key environmental regulatory agency in Arizona with a mission to protect the environment. As such, the Agency is a great resource…
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Tomorrow’s News Today: The Future of Superfund Litigation

2014, Past Issues, Print, Volume 46 (2014) Issue 2 (Summer)
Christopher D. Thomas. Few statutes bedevil experienced litigators as often as the federal Superfund act, the Comprehensive Environment Response, Compensation, and Liability Act (“CERCLA”). Although CERCLA practice is now into its third decade, the statute’s chronic drafting flaws and the absence of definitive judicial resolution of numerous fundamental issues continue to create uncertainty. This uncertainty offers the opportunity for both creative lawyering and spectacular failure. Many Superfund cases end badly because the lawyers spend their time preparing to fight the last war. In an attempt to mitigate the unease, this article will—after a rapid review of history—address the crucial legal issues we can expect to be front and center of hazardous substance litigation in the next several years. It is no secret that CERCLA was hastily and sloppily drafted in…
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