Civil Rights as Treatment for Health Insurance Discrimination

Valarie K. Blake

Section 1557 of the Patient Protection and Affordable Care Act (ACA) broadly prohibits discrimination on the basis of race, color, national origin, gender, age, and disability in healthcare programs or activities receiving federal dollars. The provision should hold interest for civil rights scholars and health policy scholars alike. It’s the first civil rights statute to combine four different civil rights statutes into a single provision creating nightmarish ambiguity about the proper standards for cause of action and remedy. Section 1557 also represents the first civil rights statute to broadly tackle discrimination in healthcare, including private health insurance, and to apply sex discrimination to healthcare (including discrimination based on gender identity and possibly sexual orientation).

Unleashing the Fourteenth Amendment

Ann L. Schiavone

Do Justice Anthony Kennedy’s opinions in the gay rights cases of Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges have any impact on the future of Fourteenth Amendment jurisprudence beyond rights for gays, lesbians, and transgender persons? We don’t know. It is possible these cases will simply remain siloed in their unique legal and cultural niche, but viewing them through the lens of 150 years of Fourteenth Amendment jurisprudence suggests they may signal a shift in due process and equal protection analysis. This shift could open the doors for challenging discriminatory laws under a more robust rational basis analysis than that which is generally employed under the traditional tiered-scrutiny structure.

Judging “Indian Character”? The Supreme Court’s Opportunity in Nebraska v. Parker

Matthew H. Birkhold

When the English arrived in the “New World” in the seventeenth century, they viewed the land as empty, unused, and unclaimed—a “vacuum domicilium” that legally justified their usurpation of the land. Nearly four hundred years later, we have come to appreciate that Native Americans stood in various agricultural, economic, spiritual, and geopolitical relationships with the land. The English simply failed to perceive these connections and uses. The Supreme Court’s recent decision to hear Nebraska v. Parker offers an opportunity for the American justice system to demonstrate that it has since developed a more enlightened and nuanced jurisprudence, one that understands more about Native Americans than the early colonists did.

Forbidden Films and the First Amendment

Jeremy Geltzer

The story of film and the First Amendment charts a steady course toward creative freedom. Within one hundred years, motion pictures developed from a fairground attraction into an art form, and from a revolutionary technology into an industrially produced mass media. More accessible to large audiences and more powerful in delivering a message than any previous medium, the movies quickly transcended their origins as a penny-parlor amusement to become an important cultural influencer.

Marriage Equality Comes To Wisconsin

Carl Tobias

Marriage equality has swept America. Numerous federal judges, including Western District of Wisconsin Judge Barbara Crabb, have invalidated state proscriptions on same-sex marriage. This paper scrutinizes U.S. litigation, Crabb’s opinion, Seventh Circuit affirmance, and Supreme Court resolution. Finding that Wisconsin shows how to efficaciously institute full marriage equality, even as other states have not, the piece affords future suggestions.

Assessing Experiential Learning, Jobs and All: A Response to the Three Professors

Robert J. Condlin

I feel sorry for Professor Yackee. He started a conversation about legal employment and ended up in a debate about clinical education. That’s a little like going to a Barry Manilow concert and having Gene Simmons walk on to the stage. In fairness, he opened the door to the larger issue on direct (perhaps inadvertently) when he acknowledged, ever so briefly, that one could “imagine . . . positive consequences of skills training,” and once the door was opened Professor Findley walked through it on cross, to give the conversation a wholly new character. As I see it, there now are three questions on the table: 1) does clinical practice experience improve a law student’s chances of getting a legal job, 2) if not, would it if employers were given better information about student practice experience, and 3) if not, are there other reasons to justify a law school’s decision to fund a clinical program. The answer to question number 1, at least for many private law firms (and all of Biglaw), is almost certainly no, but there is considerable room for disagreement on questions 2 and 3, and I will express my views on them shortly. First, however, a few words about the ostensible disconnect between clinical practice experience and private law firm employment.

Disparaging the Supreme Court: Is SCOTUS in Serious Trouble?

Brian Christopher Jones

Another turbulent Supreme Court term has left liberals pleased and conservatives disenchanted; exactly the opposite of last year’s conclusion, when liberals were gloomy and conservatives elated. And while the Court is certainly no stranger to controversy, at this point in the Roberts Era, something is different. The difference appears not through the divisiveness of the Court’s docket, which has remained consistent throughout the years, but in the way the American public, including journalists and others, now thinks and speaks about the institution. As its political nature becomes more easily discerned—both because of the issues it is deciding and the language used in the Court’s decisions—reverence to the institution, its Justices, and more importantly, its decisions, appears to be increasingly scarce.

Wisconsin Law Review Online, 2015 Symposium

Is the Constitution failing? In what ways and how should we respond? Is it time to rewrite the Constitution?

On November 7, 2014, scholars from across the country met at the University of Wisconsin Law School to consider these crucial questions during a Symposium hosted by the Wisconsin Center for the Study of Liberal Democracy. Participants were invited to submit pieces on the topic, and Wisconsin Law Review is publishing the essays in its first-ever WLR Online Symposium. WLR Online is publishing the articles throughout the Spring 2015 semester, so please continue to check back for new additions.

Limelight v. Akamai: Limiting Induced Infringement

Michael A. Carrier

In Limelight Networks, Inc. v. Akamai Technologies, Inc., the Supreme Court addressed the relationship between direct infringement under § 271(a) of the Patent Act and induced infringement under § 271(b). The Court held that a defendant could be liable for inducing infringement of a patented process only if a single party would have been liable for performing all of the steps constituting direct infringement. In this short article, I provide the background to the opinion, discuss the ruling, and offer four lessons.

Michael A. Carrier is a Distinguished Professor at Rutgers School of Law.

From a Scream to a Whisper: The Supreme Court Does Little to Fix Its Bankruptcy Court Mess (Executive Benefits Insurance Agency v. Arkison (In re Bellingham))

Jonathan C. Lipson

Say what you will about Justice Clarence Thomas: unlike the protagonist in Elvis Costello’s paean to libidinal frustration, his unanimous opinion in Executive Benefits Insurance Agency v. Arkison (In re Bellingham), certainly resists many temptations left by its predecessor, Stern v. Marshall, to define what bankruptcy courts can and cannot do. Rather than take on Stern’s grand systemic concerns—the nature of the Article III “judicial power” —Bellingham whimpers out on a technicality, concluding that problems created by Stern can be statutorily “severed” and thus resolved with the slice of a judicial knife. [. . .] This essay briefly summarizes the problems created by Stern and five ways in which Bellingham failed to fix them.

Jonathan C. Lipson is the Harold E. Kohn Professor of Law at Temple University, Beasley School of Law.