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The Power and Peril of the ACA\u27s Universality at Fifteen
No full textAs part of the symposium 15th Anniversary of the ACA: A Health Equity Review, this essay explores the ACA\u27s mix of private law and public law provisions that rendered measurable improvements in health equity and health outcomes, especially for populations that experienced longstanding health disparities before its enactment. Congress’s central objective was near-universal health insurance coverage, and the ACA employed a variety of mechanisms to reach that goal. The law’s health equity successes grew from establishing a principle of inclusion across federal statutes. This principle, which I have called “universality,” centered a human right to health approach: No longer would federal law permit exclusion of people who could not pay, or were otherwise deemed undesirable or unworthy of assistance, from health insurance coverage or health care. The principle of universality was fundamentally a health equity policy that brought the U.S. in line with other wealthy nations; yet, it also has been a source of conflict, driving political fighting over the ACA since the law’s enactment in 2010 and slowing its implementation.
Whereas anyone who needed medical care before 2010 had to be able to pay or could be turned away, the ACA made it so people became eligible for coverage as well as insurable through placing limits on actuarial practices that restricted coverage, eligibility, and benefits. For political expediency, Congress built on the fragmented U.S. non-system of health care, using the federalism-based governance structures already in place. The ACA relied heavily on Medicaid, the public health insurance program for low-income individuals, to anchor universal health insurance coverage and operationalize access to care for people who had no other paths to coverage. The law’s reliance on federal/state partnerships became central to negotiating ACA implementation during the Obama administration, however, federalism also created ongoing barriers to implementation by allowing states to opt out of Medicaid expansion, resist health insurance exchange establishment, and reject other policy partnerships. This made federalism both a strength and a weakness, paradoxically a feature of the ACA that has both served and undermined health equity.
In other words, the ACA’s animating universality principle was powerful, but it did not end the political fights over who gets assistance or which level of government is responsible for that help. To explore these tensions, Part II provides context, very briefly explaining historical norms of health care exclusion in the U.S. Part III examines the ACA’s greatest health equity tool—Medicaid expansion—and describes three phases of implementation that roughly have corresponded to policy variation, but also historical events, from one presidential administration to the next. States’ differing paths to ACA implementation illuminate the political fights against the universal coverage goal but also democratic successes along the way. In Part IV, the essay considers whether the ACA has become a durable statutory foundation for improving health equity, drawing lessons from Medicaid expansion and the health insurance exchanges to tell a broader story about ACA-based coverage leading to improved health in expansion states and ongoing problems (i.e. rural hospital closures) for non-expansion states. Finally, the essay considers new and ongoing challenges, such as the policies in the 2025 H.R.1 Medicaid cuts. Congress employed tools like work reporting requirements to enervate the ACA’s universality by reintroducing concepts of deservingness and creating barriers that will produce sharp decreases in insurance coverage
Chapter 47: Global Public Health
No full textThis chapter highlights the ways in which a TWAIL perspective is essential for understanding pervasive inequalities in global health. Despite a growing recognition of the constitutive role of international law in global health, much of the existing global health literature takes an uncritical approach to international law. A TWAIL perspective reveals how international law, even in the register of human rights, often reinforces deep underlying structural inequalities. These structural inequalities perpetuate health disparities between and within nation-states, shaping the highly uneven terrain of global health
Corporate Scenarios: Drawing Lessons from History
Full text linkAs corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of today’s scenarios in corporate governance. Scenarios are a useful tool, but who makes them matters
Book Review: How to Set Up and Run a Law Clinic
Full text linkThis book answers many questions for those tasked with deciding whether and how to fund a law school clinic. It also provides metrics by which to evaluate the operations of a clinic. And finally, this book addresses not just how best to run a clinic, but in many ways how best to deliver legal services to a community in great need of legal help, whether through a law school program or in the neighborhood. It answers questions every legal aid office in the world with limited resources must answer: how to choose clients, how to decide which services the clients will receive, and from whom, and how to deliver those legal services.
This review essay will proceed as follows. It explores the major themes of each chapter, and how these ideas may be useful to a wide audience. The review attempts to guide its reader to those chapters that will be most helpful for those who do not have time to read everything, and it suggests avenues to explore ideas further
Data as Policy
Full text linkA large literature on regulation highlights the many different methods of policy-making: command-and-control rulemaking, informational disclosures, tort liability, taxes, and more. But the literature overlooks a powerful method to achieve policy objectives: data. The state can provide (or suppress) data as a regulatory tool to solve policy problems. For administrations with expansive views of government’s purpose, government-provided data can serve as infrastructure for innovation and push innovation in socially desirable directions; for administrations with deregulatory ambitions, suppressing or choosing not to collect data can reduce regulatory power or serve as a back-door mechanism to subvert statutory or common law rules. Government-provided data is particularly powerful for data-driven technologies such as AI where it is sometimes more effective than traditional methods of regulation. But government-provided data is a policy tool beyond AI and can influence policy in any field. We illustrate why government-provided data is a compelling tool both for positive regulation and deregulation in contexts ranging from addressing healthcare discrimination, automating legal practice, smart power generation, and others. We then consider objections and limitations to the role of government-provided data as policy instrument, with substantial focus on privacy concerns and the possibility for autocratic abuse.
We build on the broad literature on regulation by introducing data as a regulatory tool. We also join—and diverge from—the growing literature on data by showing that while data can be privately produced purely for private gain, they do not need to be. Rather, government can be deeply involved in the generation and sharing of data, taking a much more publicly oriented view. Ultimately, while government-provided data are not a panacea for either regulatory or data problems, governments should view data provision as an understudied but useful tool in the innovation and governance toolbox
The Rising Returns to R&D: Ideas Are not Getting Harder to Find
Full text linkR&D investment has grown robustly, yet aggregate productivity growth has stagnated. Is this because “ideas are getting harder to find”? This paper uses micro-data from the US Census Bureau to explore the relationship between R&D and productivity in the manufacturing sector from 1976 to 2018. We find that both the elasticity of output (TFP) with respect to R&D and the marginal returns to R&D have risen sharply. Exploring factors affecting returns, we conclude that R&D obsolescence rates must have risen. Using a novel estimation approach, we find consistent evidence of sharply rising technological rivalry. These findings suggest that R&D has become more effective at finding productivity-enhancing ideas but these ideas may also render rivals’ technologies obsolete, making innovations more transient
Recommended Publications for Legal Research
No full textFor nearly 50 years, this annual publication has been providing guidance to law librarians to assist them in developing collections that support the curriculum and research needs of their users. The volume for each year contains a list of recommended titles organized by subject areas, a subject index, and a main entry index. Following the pattern established by the AALS publication Law Books Recommended for Libraries, the letters A , B , and C have been used to indicate recommendations for various types and sizes of collections. The previous editors of Recommended Publications were Oscar J. Miller & Mortimer Schwartz (for the 1970 volume through 2000) and Mary F. Miller (from 2001 to 2016)
Innovative Mechanisms for Marketing Health Insurance: An Experimental Field Test (Results from Colorado)
Full text linkWe hypothesize that marketing messages using a generosity framing have the potential to draw healthy persons into the insurance pool, thereby improving access and health outcomes and lowering premiums, but without removing choice or requiring substantial government action. The dependent variable for our field experiment is whether or not recipients of the marketing campaigns enroll in health insurance via the participating exchanges or in Medicaid
E-Cigarettes at the Supreme Court — Potential Implications for the FDA and Public Health
No full textOn July 2, 2024, the U.S. Supreme Court agreed to hear a case about the e-cigarette crisis among U.S. adolescents and the role of the Food and Drug Administration (FDA) in addressing it. Leading medical organizations have filed briefs clarifying the case’s high stakes for children’s health. A ruling against the FDA could have implications for the agency’s authority and for public health
Sexual and Reproductive Health & Rights: Advances and Setbacks
Full text linkThis article first describes shifts in human rights law that have led to improvements in the realization of sexual and reproductive health and rights (SRHR) over the last decade. The article does so, however, with careful attention to the structural factors beyond formal legal mechanisms that may undermine the ability of governments, even with the best of intentions, to fully develop the necessary robust health and justice systems. Second, this article considers two additional factors: the political economy factors that enable or limit the ability of States to realize SRHR, as well as the growing evidence base that supports positive legal transformation