Emory Law Journal

Volume 65Issue 4

How Will I Know? An Auditing Privilege and Health Care Compliance

Caitlin Pardue | 65 Emory L.J. 1139 (2016)

The current complexities of the False Claims Act and the Affordable Care Act have impacted the rise of government enforcement of fraud and abuse laws within health care entities. Yet this rise in enforcement does not adequately address efforts focused on preventing unintentional violations from occurring. This Comment analyzes the peer review privilege established in the Patient Safety Quality Improvement Act of 2005 (PSQIA), which established a privilege for data collected to improve patient safety, and suggests that a compliance audit privilege fulfills a similar goal. Although there are several differences between patient safety data and compliance audit data, this Comment argues that such differences should not preclude Congress from enacting a compliance audit privilege because compliance and patient safety have compelling similarities. The PSQIA and compliance audits both aim to improve quality and compliance through proactive efforts collecting data, performing ongoing root cause analyses, and encouraging a culture of openness within a health care entity.

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Reconciling Contractualized Procedure in Litigation and Arbitration: A Textual and Policy-Based Approach

Logan S. Kotler | 65 Emory L.J. 1177 (2016)

This Comment examines the prospect of procedural contracts by comparing the text and policies of the Federal Arbitration Act (FAA) and the Federal Rules of Civil Procedure (Federal Rules). As the existing body of literature addressing the normative desirability and plausibility of contractualized procedure grows, this Comment seeks to add textual and policy-based reasons against uncritically redesigning litigation in arbitration’s image. Private contracts already govern in the private dispute-resolution arena, particularly in arbitration. This Comment views freedom of contract along a spectrum, where on one end there are non-negotiable mandates set forth for the public to follow, and freely negotiable terms, such as arbitration agreements under the FAA, toward the other end. This Comment comports with existing scholarship in that it views procedure as negotiable to some extent. However, based on its analyses of the text and policies behind the FAA and the Federal Rules, this Comment ultimately concludes that parties should have less procedural modification freedom in litigation than in arbitration.

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Cry, No Recovery!: Narrowing Judicial Interpretation of CERCLA’s Double Recovery Provision

Allison Murphy | 65 Emory L.J. 1217 (2016)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted to ensure the cleanup of thousands of hazardous waste sites throughout the United States. The Act also purports to provide parties who must assume the astronomical costs of cleanup with a federal right to contribution or recovery from responsible parties. The language of the Act clearly prohibits plaintiffs from recovering the same costs under both CERCLA and another comparable state or federal law. This Comment argues that CERCLA’s double recovery provision should be narrowly interpreted to create economic incentives for parties to shoulder the burdens of hazardous site cleanup. Plaintiffs should be allowed to recover from collateral sources as well as other responsible parties. Because every federal court has prohibited collateral source recovery, this Comment also proposes that courts should not place undue weight on the plaintiff’s economic benefit from site remediation in double recovery cases.

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