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Epilogue: Health Care, Federalism, and Democratic Values
Get PDFIs the United States experiencing a “crisis of democracy in health care”? This symposium\u27s central question can only begin to be addressed here. The answer depends, in part, on where we look and how we measure democracy.
Democracy is a complex ideal often said to be promoted by federalism. In health care, each level of government exercises power because federalism is a default choice in health reform efforts. This default enables state governments and the federal government to create, enforce, and adjudicate health law and policy - democratic operations at the national and the subnational levels. But on each democratic dimension – sovereignty and accountability – evidence of compression and expansion exists.
This essay briefly studies the assertion that federalism is a structure that advances the democratic values of sovereignty and accountability by considering the two key federalism-based features of Patient Protection and Affordable Care Act (“ACA”) implementation. Through the lens of these reforms, we see that the question of whether democracy is in crisis is even more complex than we might expect
I\u27m Leavin\u27 It (All) Up To You : \u3cem\u3eGundy\u3c/em\u3e and the (Sort-of) Resurrection of the Subdelegation Doctrine
Get PDFIn 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue various goals.2 In 2018, Professor Sunstein still claimed: “To say the least, the standard nondelegation doctrine does not have a glorious past. In all of American history, it has had just one good year.
Experiential Learning through Popular Multimedia
No full textMany law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods
Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence
Get PDFWe assume that the nineteenth century was an era of patronage, and the twentieth century marked the rise of professionalization. But the Office of the Attorney General reveals an opposite pattern — a troubling rise of cronyism in the DOJ from the early twentieth century.
This Article uses the rough categories of “professional,” “politico,” and “insider” or “crony,” based on each attorney general\u27s background and how he or she rose to the office (rather than based upon their performance in the office.) Most AGs in the nineteenth century were politicos (major established political figures) or professionals (experienced lawyers relatively separate from partisan politics). The major turning point toward cronyism was during the Progressive Era: President Wilson’s Attorney General A. Mitchell Palmer and President Harding’s Attorney General Harry Daugherty, producing remarkable corruption and abuses in those DOJs. Then Democrats engaged in more cronyism in the mid-twentieth century, followed by more Republican cronyism since Nixon.
As a response to this history of corruption, this article proposes structural reforms for a more independent DOJ. It offers a historical critique of Justice Scalia’s dissent in Morrison v. Olson, and then offers some preliminary suggestions for structural reform of the Office of the Attorney General and other parts of the DOJ, borrowing from the independent agency model. The breakdown of the rule-of-law norms in the DOJ is not a new phenomenon; it is a century in the making. The solutions borrow from some models that have grown elsewhere in the executive branch over that same century
The politics of immigrant and refugee health in the United States
No full textOver 25 years of experience from the field have resulted in important lessons learned concerning how to best approach the multifaceted, complex treatment of immigrants and refugees. Continuing this work, it is important to educate medical communities about tried-and-true best practices and cultural sensitivity, as well as the integration of culturally-related practices in different clinical contexts. The medical model is inadequate to address the systematic challenges inherent in caring for displaced and traumatized populations. Beyond the clinical realm, systems are needed to advocate on behalf of immigrant and refugee communities using policy and law instruments; system-level intervention is the most effective way to address structural barriers to the highest possible standard of health and human rights
Considerations of History and Purpose in Constitutional Borrowing
Get PDFThis essay is part of a symposium issue dedicated to Constitutional Rights: Intersections, Synergies, and Conflicts at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can\u27t resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly originalist fashion. When we do so, we learn that armed expression and white supremacy has been linked in the past in dangerous ways that must be accounted for today. Third, in deciding how to juggle a variety of constitutional interests, we must engage in purposivist interpretation, considering not only the goal of particular constitutional provisions, but also how the general enterprise of constitutionalism is affected by interpretive choices. In a time of democratic decline, which we are experiencing today, the borrowing of constitutional ideas and delineation of rights must be done in a way that treats the renewal of democracy as an overriding purpose. Otherwise, judicial decisions will be incapable of aiding perennially mistreated groups or solving intractable problems. Remaining non-judgmental as to warring conceptions of democratic life merely ratifies unequal patterns of power and influence. Fourth, as an alternative to policing rights harmony, I argue that it is a judge\u27s responsibility to help foster an unruly constitutional culture where overlapping rights and values are ubiquitous rather than to be obsessed with maintaining a mythical notion of balance. To do so, judges should pursue these twin goals: (1) ensuring the durability of connections between key constitutional values and (2) permitting one closely related value to be substituted for another when doing so is consistent with our constitutional past and can aid the project of democratic renewal
The Future of Law and Economics and the Legacy of Guido Calabresi
Get PDFIn 1991, the American Law and Economics Association identified Guido Calabresi, Ronald Coase, Henry Manne and Richard Posner as the founders of the \u27law and economics\u27 movement. The European Journal of Law and Economics has already devoted a special issue to each of the last three. It is now Calabresi\u27s turn. The order has no particular meaning and the current issue in Calabresi\u27s honor does not depend on a desire to complete the list. Rather, we waited for a very special occasion to celebrate Calabresi\u27s work - the publication of his latest book, The Future of Law and Economics (2016)
Cases and Materials for an Introduction to American Law
No full textThe book presents a general introduction to the study of law in the United States. The idea here is to provide—in casebook form—an introduction to American law and legal English for (1) international law students, both those who wish at some point to study or practice in the United States and those who wish to remain in their home countries; (2) English-speaking undergraduate students interested in studying the law and/or going to law school; and (3) anyone else interested in understanding and studying basic concepts in law.https://scholarship.law.bu.edu/books/1326/thumbnail.jp
Data First – Tax Next: How Fiji’s Technology Can Improve New Zealand’s \u27Netflix Tax\u27 (Part 1)
Get PDFOver the past decade the VAT in the South Pacific has been changing. More change is coming. Change is needed in both the larger economies (Australia and New Zealand) and the smaller ones (the Pacific Island Countries or PICs). The changes we see currently are propelled by cross-border remote sales of services and low-value goods.The government response in the South Pacific is not uniform. The larger economies have relied on statutory remedies; the smaller economies are turning to technology. The larger economies are crafting complex, extra-territorial compliance provisions targeting remote sellers. The smaller economies are mandating secure digital invoices, real-time reporting, with mechanisms for proof of audit, that is setting the stage for a B2C reverse charge mechanism, and later adoption of a block-chain-based information exchange.Press attention is being drawn to the larger economies through catchy newspaper headlines. There is the “Netflix Tax” (for rules directed at cross-border supplies of services) and the “Amazon Tax” (for rules directed at cross-border supplies of low-value goods).Technologists are approaching remote sellers differently than are statutory draftsmen. In a residential VAT a technologist will focus on improving domestic (residential) compliance. No new extra-territorial tax (requiring non-residents to help collect and remit it) is added. Instead, there is simply a push for more granular data and an effort to capture each taxable transaction in real-time. Technologists are digitally preserving the supply chain. Each step is recorded so that the receipt of cross-border services, or the purchase of even the smallest-valued goods can be minutely identified and subjected to tax under existing rules.An additional level of enforcement may be needed. It too will be technology-based, and should borrow from the Brazilian prioritizing of digital over paper records known as SPED (Sistema Publico de Escrituracao Digital or the Public System for Digital Accounting). SPED, or something similar, is undoubtedly part of the trajectory of Fiji’s digital reform. It should be part of New Zealand’s “Netflix Tax.”Considered narrowly, this series of four papers is a specific proposal that New Zealand’s “Netflix Tax” should be reconfigured and strengthened with the technological vision that is embedded in Fiji’s VAT reform.Considered more broadly, this is a multi-part comparative study of the way a “Netflix Tax” should be adopted. It starts with New Zealand’s reform, a statutory fix to the current problem, and then considers how New Zealand could benefit from Fiji’s technology. It suggests that if Fiji’s technological fix to the remote services problem had been considered by New Zealand, then the “Netflix Tax” would be simpler to administer, and the remote services transactions would be far easier to audit.But this collection of four papers goes further. They also indicate that New Zealand, or any jurisdiction that follows this path, should very quickly be able to craft a digital B2C reverse charge mechanism. The potential to do so is inherent in the full development of Fiji’s technology. In addition, such a jurisdiction should be ready to migrate to a multi-jurisdictional block-chain where a real-time information exchange is possible. Such a block-chain is the next very necessary step in modern cross-border VAT administration