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Donor-Advised Funds in the Wake of the Tax Cuts and Jobs Act
Get PDFDonor-advised funds (DAFs) are conduits for charitable giving that support immediate tax deductions while creating a reservoir of assets for subsequent disposition to end-use charities. The number of new DAF accounts has skyrocketed in the wake of the 2017 Tax Cuts and Jobs Act (TCJA). This Article presents evidence suggesting that bunching charitable contributions to game the TCJA-enhanced standard deduction likely motivates much of the onslaught of new DAF accounts established since 2016 and argues that the typical buncher is likely to differ from other DAF account holders in ways that matter from a policy perspective. Thus, while DAF critics have generally focused on the unproductive accumulation of assets in DAF accounts and have advanced reforms aimed at speeding up DAF payouts, this Article argues that in the context of bunchers, unproductive accumulation of assets in DAF accounts is unlikely to be a major problem. The more significant problem with DAF-facilitated bunching is that the cost to the public fisc is unlikely to be justified by incremental charitable giving. Thus, while this Article concludes that regulation targeting DAF payouts is unobjectionable, it argues that a wholly different set of reforms targeting the deductibility of charitable giving generally would be needed to address the cost of DAF-facilitated bunching under current law and under thoughtfully reformed laws involving universal charitable deductions above a floor
Vaccines, Masks, and Conceptions of Harm: The Future of Public Health Mandates
No full textReducing the devastating effects of the ongoing COVID-19 pandemic on underserved and historically disadvantaged communities is a high priority to achieve health equity and social justice. This resource explains how COVID-19 exacerbated disparities rooted in historical structural inequalities and provides a full picture of how different populations are affected in times of emergency. The book provides guidance for attorneys, policymakers, elected officials, businesses, and citizens so they can work together to address inequities in the aftermath of COVID-19 and during future pandemics.
Leading experts explore how most fundamental rights--which include housing, health care, voting practices, and religion--were challenged by the health emergency. This valuable guide raises awareness of these issues and examines: How the virus heightened threats to immigrants, people with disabilities, and historically disadvantaged students The chronic underfunding of the Native American health system The impact of the virus on Asian Americans The role climate change played in the pandemic How lawyers and governments can work to alleviate a pandemic\u27s worst effects The necessity to increase access to justice in the courts How to minimize the harms to incarcerated people in prison The tax system and how to deliver economic relief during times of shutdown The future of public health mandates and what needs to change to better protect us al
Amazon\u27s Pricing Paradox
Get PDFAntitrust scholars have widely debated the apparent paradox of Amazon seemingly wielding monopoly power while offering low prices to consumers. A single company’s behavior thereby helped spark an intellectual renaissance as scholars debated why Amazon’s prices were so low, whether antitrust enforcers should intervene, and, eventually, how the field should be reformed for the era of large online platforms. One of the few things that all parties have agreed upon amidst those contentious conversations is that Amazon offers low prices. This Article challenges that assumption by demonstrating that Amazon charges higher prices than commonly understood. More importantly, unraveling the disconnect between perception and reality yields broader insights. One of the reasons why perceptions of Amazon’s pricing have remained disconnected from reality is that conversations about regulating Amazon have paid inadequate attention to behavioral economics. Behavioral economics reveals how the company leverages its sophisticated algorithms and large datasets to build a marketplace of consumer misperception by, for instance, making it difficult to find the lowest prices. Such practices undermine competition, in the uncontroversial economic sense of the word. But these practices reside in the domain of consumer law, not antitrust. Thus, a behavioral consumer lens is necessary to see that what was originally framed as an antitrust paradox is better viewed as a pricing paradox. To see the full set of concrete legal solutions for promoting competition in Amazon’s marketplace and beyond, it will be important to move consumer law out of antitrust’s shadows. These two bodies of law operating at full force offer the best chance for an era of open retail
Moral Framing and Affirmative Outreach as Drivers of Health Insurance Enrollment in Medicaid and a State Exchange: A Randomized Field Experiment
Get PDFLegal efforts to expand health insurance coverage have relied on traditional economic theory. Despite expanded subsidies and some state mandates, nearly 30 million Americans are uninsured, including many who could afford it. Where economic self-interest has not fostered enrollment, we test whether moral framing around community or responsibility could be more effective.
We present a pre-registered field experiment with a state government (Maryland) dataset of uninsured residents (N=16,477). We randomized to four conditions: (a) no-contact control, (b) affordability messaging (status quo), (c) responsibility messaging, or (d) community messaging, and found responsibility and community messages most effective (an 18.5% change)
The effects of price transparency and debt collection policies on intentions to consume recommended health care: A randomized vignette experiment
No full textNew laws promote price transparency in health care, though effects on patient decision-making are not known. Price disclosure may increase the salience of cost and cause lower-income patients to decline recommended care, worsening inequities in health outcomes. Whether patients perceive a disclosed cost as higher or lower than their expectations may also affect care decisions, but has not been studied. Scholars and policymakers have paid much less attention to the question of whether patients will have to pay the prices charged (whether disclosed or not), and how expectations regarding collections may also affect healthcare consumption. Some hospitals aggressively collect on unpaid medical bills. Others hospitals do not. Actively disclosing collection policies (whether aggressive or protective) could magnify or counteract effects of price disclosures, especially for low-income patients. To test the effect of price disclosure and debt-collection disclosures on willingness to obtain recommended care, we recruited a nationally representative sample (N = 2997) and deployed a full factorial, controlled experiment in a standardized clinical vignette model. We find that disclosing a higher-than-anticipated price increases the probability of declining recommended care (odds ratio = 1.900), with larger effects for low-income individuals. Even more, disclosing aggressive collections increases the risk of declining care (odds ratio = 4.493), at higher rates for low-income patients. Where patients fear collections, but do not know prices, they are most likely to decline care. Disclosure of an aggressive collections policy makes patients feel less informed, harms patient trust in providers, makes them feel that they were not treated fairly, and undermines their confidence in the value of their care. Mediation analysis shows that about half of the effect of collections risk is via these attitudinal variables
Large Corporations and Investor-State Arbitration
Get PDFPolicymakers and scholars have expressed concerns about growing corporate influence over government regulations, including in the context of investor-state dispute settlement (“ISDS”). Encouraged by high profile victories and examples of “regulatory chill,” critics of ISDS have argued that it excessively serves large multinational corporate interests at the expense of government regulatory agendas. In part due to such criticisms, various proposals have been made, including the replacement of ISDS with multilateral investment courts or state-to-state arbitration.
This Article introduces a novel dataset on ISDS claimant characteristics, which reveals that most ISDS claimants are actually small- or medium-sized firms. Using this dataset, this Article empirically explores whether large firms are more successful in (1) obtaining awards of damages from governments, and (2) influencing governments to repeal or amend the challenged measures through ISDS. The data reveal no evidence that large firms are more likely to prevail in ISDS cases. However, consistent with ISDS critics’ suggestions, cases brought by large firms appear more likely to end with repeal or amendment of the challenged measure.
Through case studies, this Article proposes a plausible explanation for the greater success of large corporations in chilling government regulations. The case studies show that large corporations often employ multi-pronged approaches, combining ISDS with tactics such as lobbying, domestic litigation, international dispute settlement, and diplomacy. Consequently, this Article cautions that replacing ISDS risks denying small- or medium-sized firms the opportunity to seek redress before an international arbitral tribunal, without substantially addressing concerns of “regulatory chill,” so long as other facets of such multi-pronged approaches remain viable
The Immorality of Originalism
Get PDFThe central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions
Pulse Oximeters and Violation of Federal Antidiscrimination Law
No full textOn November 1, 2022, the US Food and Drug Administration (FDA) convened a panel of its Medical Device Advisory Committee to discuss a long-known flaw in clinical pulse oximeters: that darker-skinned patients, compared with lighter-skinned patients, are more likely to have falsely elevated oxygen saturation when measured with pulse oximetry, masking hypoxemia otherwise detected with arterial blood gas tests.1-3 The phenomenon, referred to as “occult hypoxemia,” has been associated with various disparities in health care outcomes, including higher in-hospital mortality and delayed or unrecognized eligibility for needed COVID-19 treatments.
Despite their accuracy limitations, currently marketed oximeters are compliant with FDA regulations. Regrettably, this means the enforcement tools, such as seizure and recall, typically available to the FDA during postmarket device surveillance, are limited. The FDA can and did issue a safety guidance last year, warning clinicians about the research on occult hypoxemia and encouraging them to make “bedside adjustments” to account for skin tone.4 The November 2022 meeting appears to be the first public action since that time and the first time experts have gathered publicly to discuss the issue.
That pulse oximeters have been used in clinical settings for nearly 40 years with little assurance of equitable performance across skin tones is distressing. Concerning still is that law has been unable to detect or deter any subsequent patient harm, the extent of which is likely unknowable. This Viewpoint discusses how biased oximeters have remained in use for decades without legal or regulatory action and why a recently proposed rule by the Department of Health and Human Services (HHS) may finally facilitate change
The Role of Ethical Principles in AI Startups
Get PDFDo high-tech startups benefit from developing more ethical AI? AI startups implement policies and take actions to manage ethical issues associated with data collection, storage, and usage and adapt to the norms of their industry. This paper describes these startups\u27 ethics-related actions, including ethical AI policy adoption, and examines how these actions relate to startup performance. We find that merely adopting an ethical AI policy (i.e., a less costly signal) does not relate to increased performance. However, there is evidence that investors reward startups that take more costly preventative pro-ethics actions, like seeking expert guidance, training employees about unconscious bias, and hiring certain types of programmers. We use signaling theory to interpret these results, which suggest that ethical AI policies are a low-cost signal of quality to investors
The Public Stakes of Consumer Law: The Environment, the Economy, Health, Disinformation, and Beyond
Get PDFThis Article shows how consumer law, a field “derided as the law of small problems,”4 is more accurately viewed as important for addressing large-scale societal threats. It also offers a more integrated conceptual and institutional approach to consumer law so that the field can have a better chance of fulfilling its societal potential.
Part I of this Article outlines the importance of consumer law. It maps consumer law’s connections to some of the most pressing societal threats: climate change, public health, inequality, and disinformation. Part II focuses on consumer law’s place in the legal academy and government. Currently, important legal institutions marginalize consumer law. Part III concludes by broadening the field beyond protection or microeconomics. The goal is to move toward a more holistic vision for consumer law rooted intellectually in a public priority principle and institutionally in a legal system that invests in consumer law in accordance with its societal value