Owning Heller

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – even if that means rejecting Heller? One thing this new research makes abundantly clear: the Second Amendment is in the Court’s hands. How it develops—for good or ill—will be a function solely of the wisdom with which the Court articulates its mandates

Interdisciplinary Legal Scholarship in Search of a Paradigm

A “mature” science, according to Thomas Kuhn, can afford to be uncritical. It has finally answered to its practitioners\u27 satisfaction the fundamental, foundational questions of their field. It finally rests (“for a time,” at least) on an established scientific achievement that epitomizes the accomplished, collective wisdom of an age and defines the terms, conditions, directions, and limits of further refining research. With this “paradigm” in place, researchers are spared the incessant and distracting reexamination of first principles, the extravagant costs of intellectual retooling; they can proceed with confidence, effectiveness, and efficiency to do what they do best: articulating and specifying the received paradigm in more depth and detail, extending and applying it to new areas of interest. Because a paradigm “provides rules that tell the practitioner of a mature specialty what both the world and his science are like,” the practitioner “can concentrate with assurance upon the esoteric problems that these rules and existing knowledge define for him.” Postmodern legal theory appropriates and assimilates Kuhn\u27s insights in ways and to an extent that have not, I think, yet been fully recognized. In describing the development of legal scholarship in Kuhnian terms, I am thus merely elaborating assumptions integral to contemporary intellectual discourse. In particular, interdisciplinary legal scholarship regularly proceeds on the assumption that it possesses a stable, accepted, and uncontroversial paradigm for further research-in other words, that it constitutes a “mature science.” But beneath the institutional trappings of interdisciplinary legal scholarship I detect not a scholarly tradition that has finally resolved to general acclaim all its basic, foundational, methodological problems, but rather one that has never really confronted them. As a result, the attempt to apply the supposed paradigm of interdisciplinary legal scholarship to its subject matter reveals significant “anomalies” in the application. In what follows I shall first analyze and discuss these anomalies and then consider in some detail a specific example of contemporary interdisciplinary legal scholarship

State Fish Stocking Programs at Risk: Takings Under the Endangered Species Act

Part I of this article provides a brief background to fish stocking practices in the United States, including a discussion of beneficial fish stocking practices, as well as some of the allegations surrounding the detrimental effects. Part II of this article provides some necessary background on section 9 of the ESA, the “actual injury” prong, the “significant impairment” prong, and their application to fish stocking. Part III of this article sets forth recommendations for future clarification and increased consistency on these issues. Specifically, this article supports the use of two rules that can help reconcile the uncertain landscape surrounding a taking based on habitat modification. First, “actual injury” should be found where there is injury to either an individual or a population of protected species. Second, the degree of proof required to establish an “injury” where essential behaviors are impaired should be bifurcated into two tests, depending on which behavioral pattern is being adversely affected. Together, these rules can bring resolution not only to scenarios like fish stocking, but also to other future fact patterns scrutinized under the habitat modification analysis. Part IV of this article demonstrates how application of these rules to states can further the goals of the ESA, both through voluntary reevaluation of fish stocking programs, and through application for an Incidental Take Permit and corresponding Habitat Conservation Plan. These rules can provide two different paths to the same goal: to minimize adverse impacts to endangered and threatened species

Tearing Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the Inter Vivos/Testamentary Divide

This Article will examine one of the most recent will substitutes, the transfer-on-death (“TOD”) real-estate deed. Nearly half of the states have recognized, through common-law forms or legislation, a mechanism to allow for the transfer of real property on death without using a will, without following the will formalities, and without necessitating probate. This new tool in the estate planner’s toolbox is invaluable: revocable trusts have proven too expensive for decedents of modest means, and wills continue to require formalities that can easily frustrate non-lawyer-drafted estate documents. But the variety of TOD deed rules and mechanisms that the different states have adopted has led to disparity and uncertainty in form and outcome, resulting in litigation and frustration of decedent’s intent. We believe this uncertainty and frustration will continue as even more states adopt the Uniform Real Property Transfer on Death Act (“URPTODA”), which purports to stabilize the law and facilitate testamentary intent. States grappling with this new form interpose significant differences, and lawyers and judges are not all on the same page as to the consequences. One source of confusion is the URPTODA’s provision that TOD deeds are non-testamentary and, at the same time, the Uniform Act provides that the property rights do not transfer until death. Although it is one thing to declare that TOD deeds are non-testamentary even though property rights don’t transfer until death—which in itself goes against centuries of formal legal rules—it is quite another to get all the other legal consequences to fall into place accordingly. For instance, would a state’s anti-lapse statute apply to save a beneficiary designation if the deed is deemed non-testamentary, even though the intent is to have the real property transfer upon death? In our opinion, the TOD deed pushes the juridical binary of inter vivos and testamentary transfers beyond coherence and rationality. The law of will substitutes has already undermined the rationality of maintaining the divide, and in this Article, we will argue that the time has finally come to reject the division between inter vivos and testamentary transfers and seek a rational and holistic set of tools and formalities to gain the benefits of probate avoidance that will substitutes provide with the ease of control and full revocability of wills. Elevating form over functionality, although a characteristic of the common law, inevitably disserves the interests of those who cannot afford lawyers who can easily draft around the sometimes-arcane distinctions between testamentary and inter vivos transfers to gain the benefits of each while avoiding the burdens

Tackling Arithmophobia : Teaching How to Read, Understand, and Analyze Financial Statements

This discussion presents different ideas on how to teach accounting and practical finance to law students

An Overview of Health Law Research and an Annotated Bibliography

This analysis and the following bibliography are designed to meet the needs of researchers attempting to locate information in the field of health law. The analysis is written from the perspective of law librarians, but the same information retrieval problems apply to health administrators, hospital and medical counsel, and academic lawyers interested in health law and administration

The Kids Are Not Alright: Leveraging Existing Health Law to Attack the Opioid Crisis Upstream

The opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses. This Article argues that the urgency and gravity of the opioid crisis demand a very different approach. To stop the epidemic, interventions are needed long before people are on death’s doorstep. Rather, it must focus on upstream interventions that stop people from becoming addicted in the first place. To accomplish this, we should leverage an existing legal infrastructure that is already capable of such a preventive response. Although largely overlooked as a tool in tackling this epidemic, children’s Medicaid, known as the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit, provides a mechanism to identify at-risk children and the treatment necessary to shift their life trajectories off of the road to addiction. This Article lays out a blueprint for the ways in which EPSDT, the largest provider of children’s health insurance in the country, facilitates best practices in substance abuse prevention through (1) regular mental health and substance abuse screening in the doctor’s office and (2) the provision of medically necessary treatment for children at risk for and engaged in opioid and other substance abuse. This upstream approach is consistent with Lifecourse Health Development theory, which emphasizes strategies that address risk factors and burgeoning health conditions in childhood before they become debilitating. Indeed, through the Medicaid statute and its legislative history, executive branch guidance, and judicial precedent, all three branches of the federal government have endorsed the power of Medicaid EPSDT to address health conditions early and preventively. This Article argues that this existing infrastructure should be leveraged so that at-risk children can access mental health and substance abuse services before a next generation falls victim to the greatest public health crisis of our time

Facilitating Successful Failures

Approximately 80,000 businesses fail each year in the United States. This article presents an original empirical study of over 400 business restructuring professionals focused on a critical, arguably contributing factor to these failures—the conduct of boards of directors and management. Anecdotal evidence suggests that management of distressed companies often bury their heads in the sand until it is too late to remedy the companies’ problems, a phenomenon commonly called “ostrich syndrome.” The data confirm this behavior, show a prevalent use of loss framing, and suggest trends consistent with prospect theory. The article draws on these data and behavioral economics to examine the genesis and contours of this problem. It then discusses potential changes to applicable law and introduces a new “meet and confer” process for encouraging timely restructuring negotiations. The meet and confer process is designed to promote meaningful changes in management conduct and to facilitate more “successful failures.” Policymakers should adopt regulations fostering that mentality, rather than rewarding fear or ignorance in the face of failure