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The Anti-Innovators: How Special Interests Undermine Entrepreneurship
Get PDFFor much of the last century, the United States led the world in technological innovation-a position it owed in part to well-designed procurement programs at the Defense Department and NASA. During the 1940s, for example, the Pentagon funded the construction of the first general-purpose computer, designed initially to calculate artillery-firing tables for the U.S. Army. Two decades later, it developed the data communications network known as the ARPANET, a precursor to the Internet. Yet not since the 1980s have government contracts helped generate any major new technologies, despite large increases in funding for defense-related R & D. One major culprit was a shift to procurement efforts that benefit traditional defense contractors while shutting out start-ups.
Bad procurement policy is just one reason the United States has begun to lose its technological edge. Indeed, the multibillion-dollar valuations in Silicon Valley have obscured underlying problems in the way the United States develops and adopts technology. An increase in patent litigation, for example, has reduced venture capital financing and R & D investment for small firms, and strict employment regulations have strengthened large employers and prevented the spread of knowledge and skills across the industry. Although the United States remains innovative, government policies have, across the board, increasingly favored powerful interest groups at the expense of promising young start-ups, stifling technological innovation.
The root of the problem is the corrosive influence of money in politics. As more intense lobbying and ever-greater campaign contributions become the norm, special interests are more able to sway public officials. Indeed, these interests have overpowered start-ups across the government-at the Pentagon, in the courts, and in various state legislatures
Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas, Austin
Get PDFIn this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to race-conscious affirmative action, courts should guide their consideration by the role that law must play in mitigating long-term, structural disadvantages
The Legitimacy of Administrative Law
Get PDFHow does an alien imposition attain legitimacy? asks Nicholas Parrillo in Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.\u27 Parrillo and three other historians address this question in a group of outstanding new books on the rise of American administrative law. Each book reflects the various ways in which American administrative law has been an alien imposition: filling a hole in the text of the Constitution that did not address administrative powers;2 changing the traditional separation of powers of legislative rule-making and judicial adjudication with individualized due process; imposing centralized bureaucracy over local self-rule; imposing the rule of experts over the populace; and imposing one party\u27s structure over the other party\u27s dissent.
Despite all of these challenges, administrative law evolved from alien to familiar, and from contested to accepted. These remarkable studies, with heroic depths of archival research, offer a twist on the legal positivists\u27 core question, What is law? H.L.A. Hart\u27s answer in The Concept of Law is, more or less, that law is the set of official customs and norms that people generally recognize and obey.3 How did Americans arrive at obeying the administrative law revolution? Jerry Mashaw\u27s approach, in Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, 4 is to uncover a century of administrative law practice and tradition that set the stage for the twentieth century. Parrillo also delves into the nineteenth century (as well as the late eighteenth and early nineteenth) to trace the shift from profit motives to salaried public service in order to build public trust in administrators\u27 motives. Daniel Ernst, in Tocqueville\u27s Nightmare: The Administrative State Emerges in America, 1900-1940,5 and Joanna Grisinger, in The Unwieldy American State: Administrative Politics Since the New Deal,\u27 focus on how conservative opponents of the New Deal turned from general critique to procedural reform, which ultimately improved and legitimated the New Deal state. These books help answer Philip Hamburger\u27s question in his new book, Is Administrative Law Unlawful?\u27 And the answer is no, thanks to American incrementalism
Scaling and Splitting, New Approaches to Health Insurance
Get PDFIn the United States, cost-sharing in health insurance coverage has become the primary mechanism for reducing insurance expenditures and, by extension, maintaining affordable coverage. Cost-sharing involves patients making various out-of-pocket (OOP) payments for their own health care aside from whatever the insurer pays. As a patient’s spending on health care grows month by month in any given year of coverage, she moves through three different “zones” of insurance, from no insurance, to partial insurance, and finally to full insurance
Review of The Royal Pardon: Access to Mercy in Fourteenth-Century England by Helen Lacey
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Three Arguments About War
Get PDFThe rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual equality to First Amendment freedoms.
This article starts to fill gaps in our understanding of America’s war saturated legal culture. It does so by defining the practice of war constitutionalism, drawing on rich examples from our past, identifying some of the most frequently occurring forms, and evaluating the rule of law concerns posed by each mode of war-dependent argumentation. Three major arguments are scrutinized systematically: the war justification, which relies on a claim about a live conflict; the war legacy, a historical-ethical argument drawing legal lessons from a nation’s war experience; and the war metaphor, which figuratively describes a public policy issue in war-like terminology
The Universality of Medicaid at Fifty
Get PDFThis essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA\u27s legislative reformation, which led to universality, and its quantifiable effects. The essay then assesses and evaluates Medicaid’s new universality across four dimensions - governance, administration, equity, and eligibility. Each reveals a facet of universality that underscores this new principle’s importance for health care into the future
AHLA Health Law Curriculum Manual
Get PDFDespite being a significant segment of the economy, the discipline of health law is relatively new. This is particularly evident in many law schools where health law is still not represented by a full-time faculty member. Some of these schools either do not teach any courses in the area or rely primarily on adjuncts. For those unfamiliar with the discipline, it can be difficult to understand its content and breadth, which becomes a particular challenge to faculties that want to hire a health law professor for the first time, or for academic deans attempting to identify appropriately qualified adjuncts. Meanwhile, employers seeking to hire health lawyers face difficulties in finding candidates with the practical skills and experience required to fulfill their health law needs. These challenges are made all the more difficult by the frequent and expansive changes in the laws that govern the area and a struggling economy that has resulted in less employers willing to hire and train attorneys new to the bar.
Given the increased importance of health law to the country, and with an understanding that health law is one of the few areas of the legal economy that continues to grow, the American Health Lawyers Association (AHLA) has collaborated with several health law academics and practicing attorneys to create a resource that will support law schools in their health law curricular development. The goal of the collaboration is to aid schools in producing students substantively ready to practice health law upon graduation and support their efforts to integrate skills development into their curricula. In addition, for those schools interested in beginning or expanding their health law programs, we hope the collaboration will aid in identifying qualified full-time and adjunct health law professors.
This resource first discusses health law curricula from both the academic and employer perspectives. It then provides health law curricula guidance that was developed on the basis of these perspectives and addresses best practices for health law clinics and externships. It also addresses potential state-specific issues and options for law schools to form an alliance with AHLA, along with a state survey that reveals which states may have formally defined the “practice of health law” or which ones certify health law as a specialty. The appendices provide problem sets and a teacher’s manual that can be used in health law courses to develop practical skills; general statistics about law schools that offer health law courses, and states that require pro bono services in order for an attorney to maintain her license. Ultimately, we hope this resource represents the beginning of a long-term collaboration that will foster greater development of, and continuous improvement in, health law curricula.https://scholarship.law.bu.edu/books/1031/thumbnail.jp