Saint Louis University
Saint Louis University School of Law Research: Scholarship CommonsNot a member yet
3119 research outputs found
Sort by
The Administration’s Medicaid Waivers: Exploding in the Guise of Experimenting
Get PDFCongress enacted the Medicaid Act with the stated purpose of furnishing medical assistance to low-income people. Medicaid participation is not required of a state, but if a state does choose to participate—which they all do—the federal government will contribute the lion’s share of the cost of providing care. In return, the state agrees to pay the remaining costs of care. The state must also adhere to the detailed regulatory scheme Congress placed in the Medicaid Act, including requirements for determining eligibility for the program and the scope and affordability of coverage. Section 1115 of the Social Security Act authorizes the Secretary of the U.S. Department of Health and Human Services to allow states to waive (or ignore) certain requirements to undertake time-limited, experimental projects that are likely to promote the objectives of the Medicaid Act.
Unlike previous administrations, President Trump is using Section 1115 to implement restrictive policies, including mandatory work requirements, that will result in dramatic coverage losses. Such policies will, in the President’s words, “explode” the Affordable Care Act and its Medicaid expansion. This article will provide an overview of the nature and scope of the Section 1115 experimental waiver authority and describe how administrations have exercised that authority over time. The final sections of this article discuss cases filed by Medicaid beneficiaries to challenge the current administration’s actions and explore two table-setting legal questions these cases raise: (1) does the Secretary have plenary, unreviewable authority to decide whether to approve a Section 1115 waiver and, (2) if not, what level of deference, if any, should the courts give the Secretary’s decision
The Costs of Uncertainty: The DOJ’s Stalled Progress on Accessible Medical Equipment Under the Americans with Disabilities Act
Get PDFVisibility and Accountability: Shining a Light on Proceedings in Misdemeanor Two-Tier Court Systems
Get PDFThe Vaccine Race in the 21st Century
Get PDFIn a world in which infectious diseases are spreading increasingly faster, the development of new human vaccines remains a priority in biopharmaceutical innovation. Legal scholars have addressed different aspects of vaccine regulation and administration, but less attention has been paid to the role of laws governing innovation during the stages of research and development (R&D) of vaccines.
This Article explores the race to develop new vaccines from its beginnings through the early 21st century, with a particular focus on the progressively pervasive role of intellectual property in governing vaccine innovation. It describes the insufficiencies of current innovation regimes in promoting socially desirable levels of vaccine R&D, particularly in the case of emerging pathogens, a phenomenon that is at odds with public health needs.
Moreover, the Article identifies transactional inefficiencies affecting the licensure of vaccine technology. In order to address this problem, the Article argues for adoption of a technology-specific solution, and proposes a narrowly construed “take-and-pay” regime based on liability rules, enabling access to vaccine technology by follow-on innovators
Jury Trial Disparities Between Class Actions and Shareholder Derivative Actions in State Courts
Get PDFClass actions and shareholder derivative lawsuits are both forms of representative litigation that historically had to be brought in the equity courts to be decided by a judge, rather than in the common-law courts to be decided by a jury. In 1938, the federal courts merged law and equity by passing the Federal Rules of Civil Procedure, which allowed both legal and equitable claims to be heard within the same civil action. After law and equity merged, the Supreme Court interpreted the Seventh Amendment’s preservation of the right to jury trial as including not just actions recognized at common law, but also actions requiring resolution of legal rights. Thus, class and shareholder derivative actions brought in federal courts possess a right to jury trial for any legal claims.
Like the federal courts, almost all states have now merged law and equity. However, because the Seventh Amendment does not apply to the states, the right to jury trial in class and shareholder derivative actions varies among states. While a few states appear to deny any right to jury trial in both actions based on their historically equitable nature, some states now likely permit jury trials in both actions. The remaining states appear to recognize a jury trial right in class actions, but not in derivative actions. Unfortunately, most states have not clearly decided the right to jury trial for such actions. This Article surveys the states’ treatment of the right to jury trial in these two forms of representative litigation. It argues that no basis exists for state courts to treat derivative actions differently from class actions as to the right to jury trial, and advocates that states should grant the right to jury trial to both actions
Permitted Incentives for Workplace Wellness Plans Under the ADA and GINA: The Regulatory Gap
Get PDFAlthough workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs. PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer significant incentives to employees for plan participation. These new incentives are seen as in tension with the nondiscrimination requirements of the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), which protect against disclosure of certain medical information. In 2016, the Equal Employment Opportunity Commission (“EEOC”) issued new wellness plan regulations under the ADA and GINA designed to resolve this tension, which became applicable January 1, 2017. However, the portions of the regulations addressing permitted incentives were quickly and successfully challenged in court and vacated effective January 1, 2019. This article provides an overview of regulation of workplace wellness plans by these laws, discusses the 2017 lawsuit challenging the EEOC’s regulations, and identifies legal and regulatory issues to consider in light of the regulatory gap
Quotas: California’s Attempt to Crack Down on the Glass Ceiling
Get PDFCalifornia\u27s law requiring a minimum number of women as board directors for the state\u27s publicly held companies went into effect Jan. 1, 2019. The law aims for corporate equality, but it may face several legal battles before the end of the year. Jessica Gottsacker explains some of the law\u27s shortcomings.https://scholarship.law.slu.edu/lawjournalonline/1018/thumbnail.jp
Six Myths of Capping Pain and Suffering Damages
Get PDFStates have been split on whether to uphold or drop non-economic damage caps on damages for decades, hoping to lower medical malpractice lawsuits and insurance premiums for physicians. In this article, Katherine Hubbard discusses six of the many myths surrounding the debate.https://scholarship.law.slu.edu/lawjournalonline/1016/thumbnail.jp
The Supreme Court to Consider Warrantless Blood Draws
Get PDFIn this article, Javairia Khan discusses how the Supreme Court has granted certiorari to hear a Wisconsin case about the constitutionality of warrantless blood draws of unconscious motorists.https://scholarship.law.slu.edu/lawjournalonline/1013/thumbnail.jp
What Makes the Death Penalty Arbitrary? (And Does it Matter if it is?)
Get PDFA common objection to the death penalty is that it is arbitrarily imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was cruel and unusual in the same way that being struck by lightning was cruel and unusual.
It is thus surprising that the Court and those scholars who push this objection have done so little to articulate a coherent notion of arbitrariness against which the Court\u27s jurisprudence has fallen short. Too often hard issues are avoided by resort to metaphor or slogan (such as Justice Stewart\u27s lightning or the repeated refrain that we should execute only the worst of the worst). Thus critical questions remain unanswered: Can there be any arbitrariness in the imposition of the death penalty? Some scholars appear to believe that any arbitrariness would be impermissible, but the Court has not. And if some arbitrariness is permissible, at what point is there too much arbitrariness so that it becomes intolerable? And what exactly is wrong with a penalty that is arbitrarily imposed?
I hope to show in this Article that there are different kinds of arbitrariness, some worse than others. Some arbitrariness (extrinsic arbitrariness) may be more or less harmless, at least as a normative and constitutional matter. Some arbitrariness, too, may be the inevitable upshot of allowing discretion in various places in the law discretion which we do not necessarily want to give up. In the case of the kind of arbitrariness that is bad (intrinsic arbitrariness) the Court\u27s death penalty jurisprudence post-Furman has been dedicated to getting rid of it. Those scholars who attack any level of arbitrariness as unacceptable need to say more about not only what they mean by arbitrary but how much arbitrariness (if any) would be acceptable. Without good answers to these questions, we may wonder if the objection to arbitrariness is actually a stand-in for opposition to the death penalty itself, rather than to how it is applied. At least, this paper concludes that the case for the arbitrariness objection has not yet been made with the strength it has, for too long, been taken to have