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Most Recent Print Issues
April 2021 & December 2021
Volume 82, Issues 1-6
Note
Natalie L. Engel
Highway to the Safety Zone: Why the Highway Beautification Act Should Be Repealed and Its Federal Oversight Power Transferred to the States

During his 1964 presidential campaign, former President Lyndon B. Johnson once observed, “If it’s beautifying they want, it’s beautifying they’ll get.” The “beautifying” about which President Johnson spoke concerned the preservation of the United States’ natural landscape, which he sought to preserve and maintain primarily by establishing federal regulatory control over outdoor advertising, junkyards, and landscaping along federal highways. Today, his preservation efforts are manifested mainly through the control of outdoor advertising. In 2021, there were roughly 343,000 to 450,000 billboards posted alongside the 47,000 miles of Interstate Highways...

Article
Paulo Saguato
Financial Regulation, Corporate Governance, and the Hidden Costs of Clearinghouses

Clearinghouses are systemic nodes in financial markets that handle trillions of dollars’ worth of transactions. Yet, these critical market infrastructures stand on fragile foundations. The Dodd-Frank Wall Street Reform Act of 2010, the sweeping financial reform that followed the 2008 financial crisis, embraced clearinghouses as systemic risk managers for the over-the-counter derivatives markets. While policymakers used clearinghouses to remove some counterparty risk from the markets, they ended up concentrating that risk onto them, making them systemically important.

Article
Andrea C. Armstrong
Beyond the 13th Amendment – Captive Labor

A new congressional resolution to amend the Thirteenth Amendment of the U.S. Constitution aims to expand protection from slavery and involuntary servitude to incarcerated people convicted of a crime. The current Thirteenth Amendment, enacted in 1865, prohibits slavery and involuntary servitude for all “except as a punishment for crime whereof the party shall have been duly convicted.” This exception is used to justify forced agricultural labor on former plantation sites, involuntary cleaning after oil spills and other natural disasters, and work on behalf of private corporations including answering phones, sewing clothes, and recycling electronics. But focusing on the Thirteenth Amendment...

Article
Daniel A. Farber, Yuichiro Tsuji, & Shiyuan Jing
Thinking Globally, Acting Locally: Lessons from the U.S., Japan, and China

State and local climate action has played a prominent role in the global response to climate change. Rather than waiting for national action, states like California have surged ahead. This is not simply a U.S. phenomenon. Still, not all jurisdictions are engaged in emissions reductions, and some are actively recalcitrant. What prompts some state and local governments to take action while prompting others to resist?

Article
Marsha Griggs
Race, Rules, and Disregarded Reality

Exploring issues of racial bias and social injustice in the law school classroom is a modern imperative. Yet, important conversations about systemic inequality in the law and legal profession are too often dissociated from core doctrinal courses and woodenly siloed to the periphery of the curriculum. This dissociation creates a paradigm of irrelevancy-by-omission that disregards the realities of the lived experiences of law students and the clients they will ultimately serve. Using the Federal Rules of Evidence as a launch pad....

Article
Claudia Angelos, Mary Lu Bilek, & Joan W. Howarth
The Deborah Jones Merritt Center for the Advancement of Justice

When invited to write an essay on clinical legal education honoring our friend, we were struck by the importance of a focus on clinical legal education in any collection of work paying tribute to Professor Deborah Jones Merritt. Legal education has benefited from a fifty-year movement for clinical education. This movement necessarily interrogates and seeks to overcome the anachronistic, inherited Langdellian paradigm that dominates and continues to define the curricula and policies of our law schools. But the movement for clinical education has been exponentially confounded...

Article
Carol L. Chomsky, Andrea A. Curcio, & Eileen Kaufman
A Merritt-orious Path for Lawyer Licensing

More than two decades ago, Professor Deborah Merritt turned her attention to responding to the then-proliferating efforts to raise state passing scores for the bar examination. Writing with Lowell Hargens and Barbara Reskin, two professors of sociology, Professor Merritt challenged the methodology of the studies that purported to show the need to “raise the bar.”1 In the process, she presciently raised broader concerns about the validity of the bar exam to assess lawyer competence and the impact of the bar exam on the diversity of the legal...

Article
Praise from Past Editors in Chief

Professor Merritt made a tremendous impact on the Ohio State Law Journal through her mentorship and advocacy as faculty advisor. On behalf of the Journal, past Editors in Chief thank her for her unique contributions.

Article
Gregory M. Travalio
Festschrift in Honor of Deborah Jones Merritt: An Introduction

Almost forty-five years ago, I knew that I had come across someone truly exceptional, and she has done nothing in the intervening period to prove me wrong. In 1977, I was a teaching fellow at Columbia University Law School, teaching Legal Research and assisting with the Legal Methods course. I had 72 students, and one of my tasks was to create and then grade a series of problems culminating in a lengthy legal memo on a research problem. I intentionally created a rather difficult problem to hopefully give me both a significant distribution...

Article
Barak D. Richman & Steven L. Schwarcz
On Skepticism, Modesty, and Embracing Those with Whom We Disagree: A Rejoinder

We are indebted to our distinguished commentators and to the Ohio State Law Journal for allowing their participation. Each comment both substantially improved our article and meaningfully advanced the broader scholarly objective that it aims to tackle. The diversity of views the comments represent—from scholars with different areas of expertise, scholarly priorities, and intellectual sensibilities—enables the symposium to grapple with the complex technical, economic, and legal issues of pandemic planning much more effectively than any single contribution could. In short, the symposium’s whole is much greater than sum of its parts, and it certainly is much greater than our article would have been on its own.

Article
William M. Sage
What the Pandemic Taught Us: The Health Care System We Have Is Not the System We Hoped We Had

The United States spends nearly twice as much per capita on medical care as any other country. The United States has the world’s most advanced
biomedical technologies, sophisticated hospitals, and skilled health professionals. The United States has a national public health body, the Centers for Disease Control and Prevention (CDC), that is generally considered the world’s leader in infectious disease detection and response. Nonetheless, the United States suffered among the world’s worst COVID-19 disease burdens and outcomes...

Article
Jessica L. Roberts
The Health Justice of Potential of Macromedical Regulation

American health care is notoriously expensive, wasteful, ineffective, and fragmented. Not surprisingly then, this already broken system could not
withstand the additional stresses of the COVID-19 pandemic. The novel coronavirus infected millions of Americans, leaving over 600,000 dead and thousands of others with debilitating long-haul symptoms. In their pathbreaking article, Macromedical Regulation, Barak D. Richman and Steven L. Schwarcz argue that this breakdown occurred because law- and policymakers failed...

Article
Sophia S. Helland & Edward R. Morrison
The Healthcare System and Pandemics: Where Is the Market Failure?

Barak D. Richman and Steven L. Schwarcz argue that healthcare providers played a central—and failing—role in stemming the fallout from the COVID-19 pandemic.1 Analogizing to the financial crisis of 2008, they view our healthcare system as a collection of providers, each maximizing returns to its own stakeholders in a laissez-faire regulatory environment that ignored the essential interconnectedness of providers.2 Because neither hospitals nor regulators were attuned to this interconnectedness...

Article
Amy B. Monahan
Two Cheers for the US Health Security Infrastructure

The COVID-19 global pandemic has rightfully caused scholars and policymakers to examine the strengths and weaknesses of the U.S. healthcare
system and offer potential reforms. Some commentators have argued that many of the failures in our COVID-19 response were the result of our private health care system. In Macromedical Regulation, Professors Barak D. Richman and Steven L. Schwarcz agree that the COVID-19 response in the United States illustrated weaknesses in our health system but, rather than suggest the abandonment of private health care, they argue that a shift in regulatory approach...

Article
José Miola
Putting the Morals Back into Medicine - Emphasizing the 'We' over the 'Me'

I am delighted to be able to contribute to the debate surrounding Barak D. Richman’s and Steven L. Schwarcz’s excellent article on “macromedical regulation.”1 It is a hugely important topic, and they have provided an equally important contribution to it. In this paper, I shall provide a very brief account of what I see as the theoretical underpinnings of their thinking. In essence, the concept of macromedical regulation involves the recognition that a health emergency such as we have seen with COVID-19 justifies the recategorization of the provision of healthcare...

Article
Thomas P. Miller
Will New Macromedical Regulation Be Prudential?

The COVID-19 pandemic potentially offers many important lessons for health policy makers. However, among the ones more likely to be neglected or downplayed are healthier skepticism about reupholstered regulatory fixes, greater modesty about our underlying political and cultural habits, and realistic prioritization in identifying what is most feasible and necessary rather than desirable but elusive. The ambitious contributions of Barak D. Richman and Steven L. Schwarcz aim at a wide array of targets, but they end up both trying to do too much...

Comment
Howell E. Jackson
Comment on Macromedical Regulation: What Can Be Learned from Financial Regulation

Last year, in the midst of the COVID-19 pandemic, Steven Schwarcz and I pulled together our preliminary thoughts on the implications of the unfolding health care crisis on the stability of the financial system and how the systemic risks of the pandemic differed from those created by the global financial crisis of 2008. One of Professor Schwarcz’s many contributions to that essay was the concept of macromedical regulation and the suggestion that public health officials might learn from the experience of financial regulators in developing a system of macroprudential regulation in the Dodd-Frank Act...

Article
Regina E. Herzlinger
Transparency as a Solution for the Hospital Capacity Problem

COVID dramatically clarified a shortcoming in our healthcare system. We have a very good system, but like everything in the world, it has its
shortcomings. What we see through the apex of COVID is that many hospitals in hotspot areas cannot provide an adequate supply of beds. Although the United States spends much more than other countries on health care, we have only 2.8 beds per thousand whereas other Organisation for Economic Co-Operation and Development nations have many more.3 Germany, for example, has eight beds per thousand.

Article
Wendy Netter Epstein
The Healthcare System Misnomer

In their article Macromedical Regulation, Barak D. Richman and Steven L. Schwarcz argue compellingly that the U.S. healthcare system—in particular U.S. hospitals—were not prepared to stop the spread of COVID-19. They identify a key inadequacy: existing regulation targets individual components of the healthcare system without regulating the system as a whole. To remedy the problem, they introduce the concept of “macromedical regulation,” borrowing from the systems-focused approach to financial regulation that emerged from...

Article
Barak D. Richman & Steven L. Schwarcz
Macromedical Regulation

The COVID-19 pandemic has dramatically shown that a localized disease can be transmitted to the broader population, nationally and worldwide. This Article analyzes how to design regulation to help control that transmission. To that end, we first observe that existing healthcare regulation focuses almost exclusively on regulating individual components of the medical and healthcare industry, while lacking a capacity to address how those components work together as a system...

Note
Zachery Hunter
You Break It, You Buy It—Unless You Have a Badge? An Argument Against a Categorical Police Powers Exception to Just Compensation

Fifty SWAT officers armed with 40mm rounds, tear gas, flashbang grenades, breaching rams, and accompanied by two armored BearCats swarm a house located in Greenwood Village, Colorado—a sleepy suburb. Over the course of a nineteen-hour standoff, they proceed to detonate seventy-two explosives, among other aggressive tactics. By the end, the house, once valued at over $580,000, is no longer habitable. Surely, it is safe to assume that these measures were employed to combat extreme circumstances...

Note
Timothy D. Lanzendorfer
When Local Elected Officials Behave Badly: An Analysis and Recommendation to Empower State Intervention

Late one evening in April 2016, eight members of the Rhoden family in four separate homes were shot and killed in rural Pike County, Ohio. Of the entire family, only three children were spared. One child, four days old, was found alive in bed with her deceased mother. No witnesses, no leads. The Rhoden family murders shocked the public with their brutality and puzzling efficiency. It was the kind of grizzly mystery one sees on late night television, but this was real life to Pike County Sheriff Charles Reader. He had only just completed his first year on the job...

Article
Michael Selmi
Algorithms, Discrimination and the Law

Algorithmic decisionmaking has the potential to limit substantially the bias that influences so many human decisions. And yet the advent of algorithmic decisionmaking has been met by a torrent of criticism, particularly among legal scholars who highlight the potential ways in which algorithms may discriminate and express concern about the ability of the law to regulate...

Article
Aditya Bamzai
Judicial Deference and Doctrinal Clarity

The Supreme Court’s most recent foray into clarifying when courts ought to “defer” to agency interpretations of their own regulations—Kisor v. Wilkie—resulted in little clarity. Instead, in the words of Justice Gorsuch’s concurrence, the Court left in place a “zombified” doctrine that kept alive the applicable form of deference—known as “Auer deference”—while appearing to narrow the scope of the doctrine’s application...

Article
Cass R. Sunstein
Zombie Chevron: A Celebration

Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided...

Article
James E. Pfander & Andrew G. Borrasso
Public Rights and Article III: Judicial Oversight of Agency Action

As it works to define the relationship between the federal courts and the boards, commissions, and agencies that make up the administrative state, the Supreme Court has long distinguished between public and private rights. Dating from the decision in Murray’s Lessee, the public rights doctrine allows Congress...

Article
Einer Elhauge
The Causal Mechanisms of Horizontal Shareholding

Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we in fact have ample proof on causal mechanisms, and that anyway antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms...

Article
Yaniv Heled and Liza Vertinsky
Genetic Paparazzi: Beyond Genetic Privacy

The domain of accessible information about celebrities, political leaders, and other public figures is expanding as technology evolves, placing new stresses on already uneasy legal boundaries around their privacy. The availability of cheap, fast, and informative genetic sequencing technologies, combined with growing public interest in genetic information, makes it likely that we will soon witness paparazzi carrying swabs and sterile tubes in search for...

Note
Angad Chopra
Cyberattack – Intangible Damages in a Virtual World: Property Insurance Companies Declare War on Cyber-Attack Insurance Claims

Cyber-attacks and the monumental damages they cause are becoming seemingly ubiquitous. Large-scale cyber-attacks have become the norm, as opposed to an anomaly. In fact, cyber-attack has been rated as the number one concern for private entities given the sheer danger each attack poses on entity solvency. Ad-hoc attackers, in combination with state-sponsored cyber-warfare actors, have the capability of wreaking havoc on an entire nation...

Article
Jayanth K. Krishnan
Lawyers for the Undocumented: Addressing a Split Circuit Dilemma for Asylum-Seekers

The immigration crisis at the border, since 2016, has seen children separated from parents, the detention of noncitizens increase, and record-breaking numbers of applicants denied entry into the United States. For individuals fleeing their home countries because of persecution, the hardship has been particularly severe. To start, the chances of gaining asylum have dwindled significantly...

Article
Anna Offit
Race-Conscious Jury Selection

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion...

Note
Jordan C. Patterson
Ending a War Waged by Deed of Title: How to Achieve Distributive Justice for Black Farmers

A war waged by deed of title has dispossessed land from 98% of Black farmers in the United States—about 12 million acres in the last century. By many different means—mostly legal—Black farmers lost their homes and livelihoods. Willena Scott-White’s family fell victim to these tragic takings...

Article
Lawrence B. Solum.
Disaggregating Chevron

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is widely regarded as the most important administrative law decision in the history of the United States. The scholarly literature is vast and defies summary or cataloging. Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented—the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron. One might think that when it comes to Chevron, there is “no new thing under the sun,” but in fact, Chevron is still full of surprises 

Article
Megan Luby
Take It or Leave It: A New Approach to Intermittent Leave for Non-Traditional Family Caretaking Duties Under the Family and Medical Leave Act

American workers are among the most overworked in the entire world: they “work longer hours, have shorter vacations, get less in unemployment, disability, and retirement benefits, and retire later, than people in comparably rich societies . . . .” As a result, millions of those working Americans rely on the federal Family and Medical Leave Act (FMLA or the Act) and its leave benefits to balance their lives as working employees with their numerous and ever-growing private obligations. In turn, FMLA-leave related litigation has risen drastically in recent years as employees continue to assert their rights to FMLA leave time.

Article
Michael Pappas and Victor B. Flatt
Climate Changes Property: Disasters, Decommodification, and Retreat

Repetitive losses from natural disasters are a multibillion dollar problem, and climate change threatens to make it worse. However, the problem is avoidable, and this Article offers a new analytical framework to explain how.