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Lessons COVID-19 Taught: How the Global Pandemic Demonstrated that State Healthcare Regulations Can Kill
Get PDFCertificate of Need (CON) laws are designed to lower the cost of healthcare and have been a staple of American law for over half a century. In the most basic sense, CON laws require that medical providers receive the government’s permission to build a new healthcare facility, purchase major medical equipment, add or remove services, and in some cases, change their hours of operation. These requirements are designed to lower the price of healthcare by limiting competition and barring providers from investing in services or equipment that are deemed “unnecessary” by the government, thus preventing these providers from passing the cost of expensive and unused medical equipment to patients. In practice, however, CON laws have increased the cost of healthcare while simultaneously limiting the public’s access to it. New York was the first state to adopt a CON law regime, and to this day has the strictest CON law in the nation. For New Yorkers, the state’s CON law has not only increased costs and decreased access to healthcare services, but the law also effectively hamstrung New York’s ability to adequately deal with the initial waves of the COVID-19 pandemic. Typically, such anticompetitive conduct would be disallowed by antitrust law. Though, because CON laws are government regulations rather than private actions, they enjoy blanket immunity from antitrust scrutiny via the Parker immunity doctrine, despite the clear harm these laws cause consumers. This note calls for the elimination of the Parker antitrust immunity doctrine, arguing that it should be replaced with a rule of reason analytical framework that balances the anticompetitive effects of the law with the legitimate interests of the state, regardless of its status as a government regulation
A True Sense of Security: How Kirschner v. J.P. Morgan Chase Illustrates the Failings of the Reves Family-Resemblance Test and the Need to Recognize Some Syndicated Loans as Securities for the Sake of the Financial System
Get PDFFollowing the 2008 financial crisis, Congress implemented a number of reforms aimed at ensuring that such a man-made disaster—fueled by greed and willful ignorance—is not permitted to happen again. On the surface, these reforms appear to be a success; however, under the surface, there is currently a capital market that is effectively ignored, not only by the reforms passed in the wake of the financial crisis, but by virtually all securities regulation. This capital market, which revolves around so-called syndicated loans, is estimated to be larger than the subprime-mortgage collateralized debt obligations market was at its apex, and yet it is unregulated, in large part due to the application of the Reves family resemblance test—the test courts use to determine if something is a security, and thus subject to securities laws. This test is outdated and fails to account for the modern-day syndicated loan market, which has undergone considerable changes in the last decade. In order to ensure that courts are properly classifying securities as securities, this note proposes an updated test for subjecting investment vehicles to securities laws and regulations, which properly takes into account the modern-day realities of the syndicated loan market. This solution will promote increased accountability and diligence in the syndicated loan market, which is necessary to ensure that Congress’s goal of preventing another financial crisis is realized
Determining Marriage Length in Support Calculations: Should Cohabitation Count?
Get PDFMany states have sought to make spousal support awards more predictable by linking them to marital length. States doing so must decide whether to include premarital cohabitation within the calculation determining marriage duration, which for many couples will significantly affect the ultimate determination. This Article discusses some of the difficulties in achieving consistency and predictability in marital length determinations, focusing on how the supreme courts in Massachusetts and North Dakota have sacrificed those goals in their attempts to achieve what they likely thought to be more equitable results in individual cases
Targeted Regulation of Proxy Voting Advice: Balancing Monitoring with Information Flow in the Age of ESG
Get PDFProxy voting advice businesses have historically been guided by disjointed rules and regulations based on their relationship to other entities, but under a 2020 rulemaking they were officially brought under the auspices of the Securities and Exchange Commission. However, after a change in presidential administrations, the Securities and Exchange Commission in 2021 issued a proposed amendment which, if adopted, would rescind some of the more contentious elements of the initial 2020 rulemaking. This Note considers how, even if the 2021 proposed amendments are adopted, the Securities and Exchange Commission can simultaneously regulate and protect proxy voting advice businesses through the creation of an advisory review board within the Securities and Exchange Commission’s Division of Corporation Finance. This board would serve to protect the independent source of information which specialty voting groups have come to rely upon, while also promoting the Securities and Exchange Commission’s goals of transparency and accuracy
Reviving the Realist Restatements and the Common Law Codes: Neil Cohen and the Grand Style
Get PDFThe “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the Restatement (Third) of Contracts – Consumer Contracts. Finally, it will offer an appreciation of Neil Cohen, the draftsman, and describe his crucial role in the most recent round of Restatements and UCC revisions
HACKING COPYRIGHT: HOLDING COPS ACCOUNTABLE FOR ABUSING YOUTUBE’S COPYRIGHT FILTER SYSTEM
Get PDFThis Note both explores the mechanisms and incentive structures that make “copyright hacking” possible and explains the legal system’s failure to provide recourse for victims of successful “copyright hacks” by police officers. Because the DMCA has failed to keep pace with the internet’s exponential growth, OSPs, such as YouTube, have developed filtering systems that can be exploited to “copyright hack” users and ultimately suppress their speech. A victim of “copyright hacking” by a police officer currently has no recourse; the doctrine of qualified immunity functionally precludes them from suing for violating their First Amendment rights. This Note proposes two possible solutions to “copyright hacking.” First, the Copyright Office should require that OSPs register their proprietary copyright filtering systems to ensure that they comply with the standards of fair use. Second, the Supreme Court should hold that recording public police activity is protected speech under the First Amendment; by doing so, plaintiffs who are “copyright hacked” would avoid having their claims dismissed due to a defendant officer’s use of qualified immunity