Category: Volume 46 (2014) Issue 1 (Spring)

Debra Pogrund Stark, Dr. Jessica M. Choplin, Dr. Joseph A. Mikels & Amber Schonbrun McDonnell. It was the best of loans, it was the worst of loans. For many seniors who are living on an inadequate fixed income with a home value that far exceeds any mortgage debt on it, a “reverse mortgage” might be a good method to address chronic cash shortages. Under this type of mortgage, the lender makes payments to the borrower that are not generally due until the senior passes away or moves from the home. Many seniors have expressed interest in this unique type of financing, and this number has grown exponentially in recent years, as there were ten times the number of seniors entering into reverse mortgages in 2007 as there were in 2001. But,…

Omari Scott Simmons. Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K–12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the…

Arden Rowell & Jessica Bregant. This Article presents an empirical study of how numeracy—or math skill—relates to legal decision making. We describe three findings. First, the study shows a surprisingly high level of math skill among law students, especially given the common folk wisdom that lawyers are bad at math. Second, although prior research in non-legal contexts has shown that people with low numeracy are particularly susceptible to cognitive bias, we detect no significant relationship between law students’ math skills and their susceptibility to bias or framing effects. Finally, and perhaps most strikingly, our findings show that the substance of legal analysis varies with math skill for at least some subset of cases. In particular, we find that law students with lower numeracy make decisions that are less consistent with…

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…

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…

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

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

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…

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…