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Pursuing Medicaid Block Grants with the Healthy Adult Opportunity Initiative: Dressing Up Old Ideas in New Clothes
No full textThe Trump administration\u27s Healthy Adult Opportunity waiver follows a long history of Republican attempts to retrench the Medicaid program through block grants and to markedly reduce federal spending while providing states with substantially greater flexibility over program structure. Previous block grant proposals were promulgated during the presidential administrations of Ronald Reagan and George W. Bush and majorities in Congress led by House Speaker Newt Gingrich and House Budget Committee Chair and then Speaker Paul Ryan. Most recently, Medicaid block grants featured prominently in Republican efforts to repeal and replace the Affordable Care Act. This essay traces the history of Republican Medicaid block grant proposals, culminating in the Trump administration\u27s Healthy Adult Opportunity initiative. It concludes that the Trump administration\u27s attempt to convert Medicaid into a block grant program through the waiver process is illegal and, if implemented, would leave thousands of people without necessary medical care. This fact, combined with failed legislative efforts to block grant Medicaid during the last forty years, highlights the substantial roadblocks to radically restructuring a popular program that helps millions of Americans
Estimating The Appropriate Size Of Global Pull Incentives For Antibacterial Medicines
No full textAntibacterial medicines should be foundational for modern medicine—a key part of the infrastructure of contemporary practice. Recently, however, antibacterials have struggled commercially. Even with “push” incentives (grants paid before regulatory approval), antibacterials have failed on the market because revenues are tied to volume sold. There are policy initiatives under way in the United States and United Kingdom that explore paying for exceptional antibacterials with “pull” incentives (paid after regulatory approval) by delinking the payments from volume via other payment formats such as market entry rewards and subscriptions. This article discusses these initiatives but also proposes an expected net present value model for calculating the global incentives required to create a functional antibacterial market, exploring options such as antibacterial subscriptions, market entry rewards, push incentives, higher prices, and drug development through charitable efforts. The model estimates that current push incentives should be continued, but governments must also enact pull incentives that will add several billion dollars to the global revenue stream of a highly innovative antibacterial, reduced by any grants received supporting clinical development of that product. The amounts in the proposed Pioneering Antibiotic Subscriptions to End Upsurging Resistance (PASTEUR) Act of 2021 and a UK pilot program are well within the bounds of an effective antibacterial pull incentive
Experimental Meets Intersectional: Visionary Black Feminist Pragmatism and Practicing Constitutional Democracy
Get PDFThat pragmatism can do-and already is doing-real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism. In particular, I engage with Deva Woodly\u27s recent book, Reckoning: Black Lives Matter and the Necessity of Democratic Social Movements, in which Woodly argues both that democratic social movements are important institutional structures in U.S. constitutional democracy and that the transformative Movement for Black Lives is based on a unique political philosophy, radical Black feminist pragmatism. This Article also examines strands of visionary Black feminist pragmatism (as elaborated by V. Denise James and Patricia Hill Collins). The Article also looks back to the work that pragmatism was doing, during the renaissance of pragmatism in the legal academy in the 1990s, in significant work by feminist legal theorists, including Margaret Radin, Mari Matsuda, and Katherine Bartlett. It offers some comparisons and contrasts in these different engagements with pragmatism, concluding that the futurity and politics of care characteristic of radical Black feminist pragmatism offer vital commitments and strategies for societal repair and for strengthening constitutional democracy
Civic Education in Circumstances of Constitutional Rot and Strong Polarization Rot
Get PDFThis Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as “constitutional rot” in the United States. A twenty-first century civic education must meet challenges of polarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a “Sputnik moment for teaching civics”—seeing a link between the whitesupremacist/conspiracy-theory mob’s actions and the failure to instill civic virtue in “We the People.” To be capable of spurring national reconciliation and renewal, civic education must reckon with systemic racism and with how to strive to overcome it. This Essay critiques the model of “patriotic education” set out in The 1776 Report as a signal of, rather than a cure for, constitutional rot. The Report’s attacks on “identity politics” and critical race theory as incompatible with “authentic” civics education echo in recent proposed or enacted state and local laws prescribing whether and how teachers may teach students about racism and sexism. A better model of civic education, we argue, is the call for “reflective patriotism” set out in the Educating for American Democracy Initiative. This model combines “love of country with clear-eyed wisdom about our successes and failures in order to chart our path forward.” It helps students to engage with “hard histories” of inclusion and exclusion and to understand how the constitutional order has become more democratic because of the efforts of social movements. It seeks to educate young people “to participate in and sustain our constitutional democracy.” This model offers hope for addressing constitutional rot and preparing students to face present-day challenge
Traversing Cyber, Indigenous, New Space, Mediation, and COVID-19 Disputes: The Schiefelbein Global Dispute Resolution Conference
No full textThe Third Annual Schiefelbein Global Dispute Resolution Conference took place on Friday, January 15, 2021. The conference was hosted by the Lodestar Dispute Resolution Center at the Sandra Day O’Connor College of Law and generously supported by Les and Linda Schiefelbein. This post distills selected topics and highlights from the conference – including comments from keynote speaker, Catherine Amirfar and highlights from panels focusing on issues related to indigenous peoples, new space disputes, mediation, and disputes arising from COVID-19 related issues – and connects these contributions to broader discussions within the international arbitration field
Profiling the gene editor
No full textIn The Code Breaker, distinguished historian and biographer Walter Isaacson tells the life story of biochemist Jennifer Doudna, who played a major role in discovering the inner workings of the gene editing tool CRISPR-Cas9. Doudna\u27s story is compelling and intersects with others, including French scientist Emmanuelle Charpentier, with whom Doudna shared the 2020 Nobel Prize in Chemistry, and notable figures in contemporary biology, including Eric Lander, George Church, and Feng Zhang
Rethinking Batson-Soares
Get PDFAs the American trial by jury system approaches its 400th year, unlawful discrimination in the selection of jurors remains a pressing issue. The peremptory challenge process – by which a party may object to the seating of a juror for virtually any reason without having to explain its motivation – has faced increasing scrutiny in the criminal trial context. Though not constitutionally guaranteed, the peremptory challenge has been hailed as having an “important role in assuring the constitutional right to a fair and impartial jury,” enabling a defendant to eliminate prospective jurors “whom he perceives to be prejudiced against him” or who may be “harboring subtle biases.”[1] It has simultaneously been criticized as a means by which prosecutors and defense attorneys engage in racial discrimination with virtual impunity, be it purposeful or motivated by implicit bias
We\u27re All Pirates Now: Making Do in a Precarious IP Ecosystem
Get PDFFifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet\u27s expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this new piracy paradox : a legal regime that ostensibly punishes piracy in a culture in which it is unavoidable. The examples show how everyday creators and innovators negotiate the necessity of copying others\u27 work with the desire for control over their own work in ways largely orthogonal to IP law. I describe these adaptations that combine a narrower scope of rights and qualitative metrics for protection alongside attribution norms, with references to interview data. Both adaptations broaden the public domain while building resiliency within creative and innovative communities. Neither lack controversy or contestation, but together they explain how everyday creators and innovators make their way in an IP system that largely fails to adapt or reflect their own values or practices in the Internet age
Navigating the Sea Change in Law Firm Finance and Ownership in the U.S.
No full textFor years, Australia and the U.K. have been the pioneering jurisdictions regarding ownership of law firms. Now, there’s a new kid on the block. Recent developments in a few U.S. states, predominantly Arizona, and a new approach by the American Bar Association (ABA) signal a broad reexamination of the long-entrenched prohibition on non-lawyer participation (ownership and management) in law firms. Regulation of American lawyers and law firms takes place at the state level, with regulatory innovations in one state often inspiring others. It is unsurprising, therefore, that other states are already following Arizona and actively considering making similar changes. If the precedent of the global rise of third-party funding is any guide, the changes in the U.S. will likely lead to an acceleration of non-lawyer participation in the practice of law globally. This post surveys and analyzes the recent changes in the U.S., identifies some of their likely effects on international arbitration, and concludes with a call for action to the international arbitration community and, in particular, arbitral institutions
A Duty of Loyalty for Privacy Law
Get PDFData privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, exactly, would such a duty of loyalty require? What are the goals and limits of such a duty? Should loyalty mean obedience or a pledge to make decisions in people’s best interests? What would the substance of the rules implementing the duty look like? And what would its limits be?This Article suggests a duty of loyalty for personal information that answers these objections and represents a promising way forward for privacy law. We offer a theory of loyalty based upon the risks of digital opportunism in information relationships that draws upon existing—and in some cases ancient—precedent in other areas of American law. Data collectors bound by this duty of loyalty would be obligated to act in the best interests of people exposing their data and online experiences, up to the extent of their exposure. They would be prohibited from designing digital tools and processing data in a way that conflicts with trusting parties’ best interests. We explain how such a duty could be used to set rebuttable presumptions of disloyal activity and to act as an interpretive guide for other duties. And we answer a series of objections to our proposed duty, including that it would be vague, be too narrow, entrench surveillance capitalism, create a problem of conflicting duties, and spell the end of surveillance-based “targeted advertising.” The duty of loyalty we envision would certainly be a revolution in data privacy law. But that is exactly what is needed to break the cycle of self-dealing and manipulation ingrained in both the current internet and our society as a whole. This Article offers one pathway for us to get there