ASAL Forum

The Annual Survey of American Law is excited to announce Forum, our new, online publication. Forum features shorter articles & essays from students, professors, and practitioners.


Recent Essays

Prioritizing Patient Protection: Prosecutorial Discretion in Healthcare Fraud Investigations
Ryan P. Knox

This article examines the ethical issues of prosecutorial discretion attendant to healthcare fraud investigations and cases. In particular, it focuses on a tension that arises out of a healthcare prosecutor’s role as attorney for the government and for the people. Part I discusses the types of healthcare fraud offenses, the victims of each offense, and the remedies for each offense. Part II considers how prosecutorial discretion impacts which offenses, victims, and remedies are emphasized and the ethical challenges arising from these decisions. Part III explains the options in- and outside of the healthcare enforcement scheme for individual patient-victims to redress their harm and highlights the barriers that patients face to bringing lawsuits. Part IV recommends a reprioritization of healthcare fraud enforcement in order to ensure prosecutors protect not only the government purse but also the people. Additionally, Part IV recommends ways for prosecutors to address financial healthcare fraud and noncompliance issues while still prioritizing cases of individual patient harm and patient access to healthcare.

M&A and Fashion: If the Deal Fits… Buy It!
Douglas Hand

This Article will focus on the specific aspects of M&A that are unique to the fashion industry. Part One provides a high-level discussion of the M&A process within the fashion industry and some of the distinctive valuation metrics that go into determining targets, then turns to some of the challenges of due diligence. Part Two of this Article outlines transaction structures and describes the negotiation and documentation process, as well as the elements that go into a successful closing. The Article concludes with an exploration of the post-closing goal of achieving the synergy-driven results that motivate the M&A process.

Section 1115 Waivers: Success for Medicaid in Michigan and Indiana
Kathryn A. Haines
Cite as 2018 ASAL F. 22

This Essay examines two states that have employed Section 1115 waivers to implement innovative models of Medicaid expansion: Michigan and Indiana. Both states are in the same geographic region and have utilized similar mechanisms with their waivers. However, their outcomes differ in both implementation strategies and success rates. The Indiana plan is of particular interest because it was designed by Seema Verma, the newly appointed Administrator of the Centers for Medicaid and Medicare Services (CMS). Consequently, Indiana’s version of Medicaid expansion and its performance to date provide valuable insight into where Medicaid may be headed under the Trump Administration.

Sovereign Bankruptcy Hydraulics
Stephen J. Lubben
Cite as 2018 ASAL F. 1

The paper examines the relationship between sovereignty and the need for a bankruptcy process. As such, it is a direct response to proposals as varied as that put forth by David Skeel in the Chicago Law Review, arguing for a bankruptcy process for state governments, the recent enactment of a special bankruptcy system for Puerto Rico, or the International Monetary Fund’s frequent flirtations with a “bankruptcy code for nations,” like Argentina or Greece.

In the paper, I observe that a governmental entity with full sovereign immunity has no need for a bankruptcy process—because they already enjoy the kind of immunity from creditor action that any bankruptcy system could offer. I thus reject Professor Skeel’s recommendation of a bankruptcy system for American states, and also express some real doubt about the IMF’s proposals. On the other hand, I argue that municipal bankruptcy makes some sense, since places like Detroit have no real protection from creditor lawsuits.

Regulation Before Condemnation: Reworking the Airbnb Ban in New York City
Daniel Sperling
Cite as 2017 ASAL F. 1

This Essay examines the history behind tenant protection laws in New York City in three major areas of tenant protection laws: affordability, habitability, and fairness for tenants and landlords alike. This Essay then analyzes Airbnb opponents and their arguments in favor of banning the use of Airbnb. By juxtaposing the public policy behind the tenant protection laws and the arguments against the use of Airbnb, this Essay shows that the Airbnb ban was an inappropriate solution to address the historical and larger public policy issues behind tenant protections in New York City. Finally, the Essay levies some suggestions for proper regulation of Airbnb rentals that would address the concerns of Airbnb opponents while also still maintaining the longstanding public policy goals of tenant protection laws.

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