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The Implications Of Rutledge v. PCMA For State Health Care Cost Regulation
No full textOn December 10, 2020, the Supreme Court handed a significant win to states and broadened the path forward for state health care cost control efforts. In Rutledge v. Pharmaceutical Care Management Association, the Court ruled 8-0 that the Employee Retirement Income Security Act (ERISA) did not preempt Arkansas’s law regulating pharmacy benefit managers (PBMs), the intermediaries that administer prescription drug benefits for health plans
Climate Change’s New Ally: Big Finance
No full textOver the past two years a striking change has taken place in the boardrooms of greenhouse-gas producers: a growing number of large companies have announced commitments to achieve “net zero” emissions by 2050. These include the oil majors BP, Shell, and Total, the mining giant Rio Tinto, and the electricity supplier Southern Company. While such commitments are often described as “voluntary”—not mandated by government regulation—they were often adopted begrudgingly by executives and boards acquiescing to demands made by a coordinated group of their largest shareholders
Telehealth for an Aging Population: How Can Law Influence Adoption Among Providers, Payors, and Patients?
Get PDFTelehealth continues to experience substantial investment, innovation, and unprecedented growth. However, telehealth has been slow to transform healthcare. Recent developments in telehealth technologies suggest great potential for chronic care management, mental health services, and care delivery in the home—all of which should be particularly impactful for an aging population with physical and cognitive limitations. While this alignment of technological capacity and market demand is promising, legal barriers remain for telehealth operators to scale up across large geographic areas. To better understand how federal and state law can be reformed to enable greater telehealth utilization, we review and extract lessons from (1) establishment of a healthcare relationship, (2) state licensure laws, and (3) reimbursement. We analyze these areas because of the legal ambiguities or inconsistencies they raise depending on the state, which seem to be hampering telehealth growth without necessarily improving quality of care. We propose several solutions for a more unified approach to telehealth regulation that incorporate core bioethics principles of doctor-patient relationship, competence, patient autonomy, as well as population-wide questions of resource allocation and access. Lawmakers should clarify that healthcare relationships may be established outside of in-person meetings, align licensure laws via an interstate compact or federal preemption, and expand Centers for Medicare and Medicaid plans to reimburse telehealth delivery in the home
Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents, Fulton v. City of Philadelpha
Get PDFThis Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. The race analogy in today’s religious exemption cases is attractive to LGBT-rights advocates because the Court has—in the 1960s case of Piggie Park v. Newman—rejected a religious exemption claim in the context of racial discrimination in public accommodations.The amicus brief addresses two common arguments made by exemption seekers against the race analogy. First, today’s exemptions seekers bristle at the comparison to Piggie Park and to the vendors of the 1960s who sought to justify racial discrimination based on religious beliefs. They contend that the vendors of the 1960s were actually racists using religion as a cover for their bigotry. In contrast, today’s wedding vendors contend that they are asserting honorable and sincerely held religious beliefs that justify sexual orientation discrimination. This amicus brief asserts that the race analogy and the honorableness of today’s exemption seekers are not mutually exclusive because (1) the exemption seekers of the 1960s were viewed as honorable and sincere by courts and the public alike; and (2) courts need not look behind the asserted religious belief to validate or critique it, but must instead accept the asserted belief at face value; any normative characterization of the asserted religious belief is thus irrelevant assessing the propriety of the race analogy.Second, today’s exemption seekers argue that the race analogy is improper because race is subject to strict scrutiny in an equal protection analysis, whereas sexual orientation is subject to, at most, intermediate scrutiny. This argument fails because it is based on a fundamental misunderstanding of two things that are not commensurate: the relationship between the equal protection tiers of scrutiny, on one hand, and claims for religious exemptions from antidiscrimination law, on the other.The amicus brief concludes that analogizing to race in this case requires no improper governmental assessment of religious beliefs, just as courts made no such assessment in the 1960s. The race analogy, including an analogy to Piggie Park, should thus be used in the Fulton case and others like it
Ranking for Good?: A Comparative Assessment of the Performance of French Corporations in Human Rights Rankings
Get PDFThis article proceeds as follows. First, it will define well-being and discuss the ways in which a range of human rights must be protected to promote well-being. Next, it will explain the ways businesses can impact well-being, for good or for ill. This will be followed by a discussion on the relevant legal and policy frameworks in France that regulate information relevant to the social and environmental impacts of business, including the Duty of Vigilance Law and the National Action Plan of France for Implementing the U.N. Guiding Principles on Business and Human Rights. Using examples of leading French multinational corporations in the food, pharmaceuticals, energy, and information sectors, this article then examines the rankings of Danone, Sanofi, and Total on human rights performance relevant to the OECD Framework for Measuring Well-Being. In particular, it will map how the “current well-being” criteria of “health status,” “environmental quality,” “personal security,” and “future well-being” are counted in the human rights rankings that have been used to assess French corporations to date. Finally, this article will analyze corporations’ responses to rankings to show how ranking business impacts on human rights as relevant to wellbeing operates to influence constituencies of interest to corporations including investors and consumers
Sticky BITs
Get PDFOne of the defining features of international investment law is its enforceability; almost all bilateral investment treaties (“BITs”) in a network of more than 3,200 agreements allow enforcement through investor-state arbitration. Thus, if a host country violates a treaty and harms a protected investment, the investor can bring a direct enforcement action against the host country through international arbitration. More than 800 enforcement actions have been initiated by investors, and more than seventy billion dollars have been awarded by arbitrators. The enforcement of international investment law has also given rise to a critique that arbitrators are expanding treaty protections through judicial interpretations that unfairly benefit wealthy corporations at the expense of developing economies. Some countries are responding with en masse treaty terminations and a wholesale rejection of investor-state arbitration. An alternative is for states to negotiate new, balanced treaties with more precise language to limit the discretion of arbitrators.
This paper is the first to document precisely which countries update investment treaty provisions in response to prominent arbitration decisions. Using a new comprehensive database, created by one of the authors in partnership with the United Nations Conference on Trade and Development (“UNCTAD”), we document a lagged and modest response to these decisions. We also develop a simple framework to infer preference formation in treaty negotiations. Our framework and empirical evidence suggest that incomplete information and status quo bias contribute to the persistence of original treaty provisions in the investment treaty network. Based on these findings, we recommend a more aggressive policy response: a multilateral investment instrument that would enable countries to respond more efficiently to developments in investor state arbitration. Current trends in unilateral treaty terminations indicate that such a response may be necessary to restore the legitimacy of international investment law and to prevent a further erosion of the investment treaty network
POV: Since When Should a Misdemeanor Carry a Death Sentence?
No full textIn Massachusetts, you can be sentenced to up to two-and-a-half years for shoplifting. Admittedly, you are unlikely to receive this sentence upon your first conviction, but if this is one of multiple shoplifting convictions or you violated probation, you may end up serving time in jail. The same is true for driving without a license, and certainly for drug possession. A first charge of distribution of any type of drug near a park or school means a two-year mandatory minimum sentence. As a matter of fact, about 27 percent of male and 36 percent of female prisoners in Massachusetts are serving time for nonviolent offenses. As we all know, incarceration affects people of color differently. In Massachusetts, African Americans are eight times more likely to be incarcerated, and Latinos four times more likely, than their white counterparts
Paying for Unapproved Medical Products
Get PDFThis symposium article examines the use of investigational (un-approved) medical products in the United States, with particular focus on who pays for this use. In the United States, the question of who pays for the use of approved medical products for their intended indications is complicated enough, with some expenses borne by private payers, some by public payers, some covered as charity care, and some paid out of pocket by patients. A separate question is off-label use, in which an approved medical product is used for an unapproved indication. In this article, we focus on a narrower issue: what entities in the United States pay for access to unapproved medical products, e.g., investigational drugs, devices, or diagnostics that have not (yet) received Food and Drug Administration (“FDA”) approval.
We examine the various forms of preapproval access (“PAA”) to experimental medical products available in the United States—clinical trials and non-trial preapproval access via the Expanded Access (“EA”) and Right to Try (“RTT”) pathways. For each, this paper analyzes which entity—individual, insurer, sponsor, or other—bears the cost and what limitations or caps, if any, exist on these costs. This paper considers various proposed novel payment mechanisms that may permit more equitable use of investigational medical products.
Part I outlines payment-related disparities in access in- grained in the current United States healthcare system. Part II focuses on access in the context of clinical trials, which most payers have begun to cover, but where remaining uncovered expenses can disincentivize participation in clinical trials, even among those highly motivated to enroll. Part III discusses non-trial preapproval access pathways, specifically Expanded Access and Right to Try, where coverage is scant. Part IV briefly deals with investigational products (such as stem cell treatments) that are available via unregulated or underregulated direct-to-consumer sales. Part V then re- views the ethical considerations inherent in paying for investigational medical products
All (Poor) Lives Matter : How Class-Not-Race Logic Reinscribes Race and Class Privilege
Get PDFIn An Intersectional Critique of Tiers of Scrutiny, Professors Devon Carbado and Kimberlé Crenshaw infuse affirmative action with an overdue dose of intersectionality theory. Their intervention, which highlights the disfavored remedial status of Black women, exposes equality law as an unmarked intersectional project that “privileges the intersectional identities of white antidiscrimination claimants.”
This latent racial privilege rests on two doctrinal pillars. First, single-axis tiers of scrutiny, which force claimants and courts to view discrimination in either/or terms (that is, race-based or gender-based or class-based), contravene intersectionality’s core insight that “people live their lives co-constitutively as ‘both/and,’ rather than fragmentarily as ‘either/or.’” Equal-protection doctrine, we might say, is “intersectionality-blind.”
Second, intersectional blindness exists alongside colorblindness—a racial ideology hostile to race-conscious remedies. This pairing yields an equality regime that favors intersectional subjects whose racial identity is decoupled from their disadvantage (e.g., poor whites) and those who reap racial advantage through the daily churn of ostensibly neutral “market forces” (e.g., class-privileged whites)
A “Woman’s Best Right”—To a Husband or the Ballot?: Political and Household Governance in Anthony Trollope’s Palliser Novels
Get PDFThe year 2020 marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the U.S. Constitution. In 2018, the United Kingdom marked the one hundredth anniversary of some women securing the right to vote in parliamentary elections and the ninetieth anniversary of women securing the right to vote on the same terms as men. People observing the Nineteenth Amendment’s centenary may have difficulty understanding why it required such a lengthy campaign. One influential rationale in both the United Kingdom and the United States was domestic gender ideology about men’s and women’s separate spheres and destinies. This ideology included the societal premise where the husband was the legal and political representative of the household and extending women’s rights—whether in the realm of marriage or of political life—would disrupt domestic and political order. This Article argues that an illuminating window on how such gender ideology bore on the struggle for women’s political rights is the mid-Victorian British author Anthony Trollope’s famous political novels, the Palliser series. These novels overlap with the pioneering phase of the women’s rights campaign in Britain and a key period of legislative debates over reforming marriage law. This Article looks at how the Woman Question (as mid-Victorians called it), including the question of women’s political rights, featured in these novels. In his fiction and nonfiction, Trollope expressed decided views about the Woman Question, insisting that a woman’s “best right” was the right to a husband, rather than to the ballot or greater employment. However, the evident tension between such views and the rich portraiture of Trollope’s female characters—including in the Palliser series—suggests an intriguing dialectic between espousing and subverting Victorian ideals about womanhood. Examining the first three novels in the series, Can You Forgive Her?, Phineas Finn, and Phineas Redux, this Article shows how they link matters of public power and political rule to private power and household rule. The novels gesture toward parliamentary debates over the Woman Question, but, by comparison with Trollope’s detailed creation of parliamentary debates with real-world parallels, do not include debates over woman suffrage or the various marriage law–reform bills that failed or succeeded. Even so, this Article shows that the characters in the Palliser novels are mindful of, and constrained by, the marriage law of the time, including husbandly prerogatives of household rule, wifely duties of obedience, and women’s limited options for exiting a troubled marriage. Through analyzing the various marital relationships formed in these novels, as well as other familial relationships and friendships, this Article identifies how legal and social rules about gender roles shape the characters’ connections to political and household power. Trollope’s female characters act in a social context in which marriage is the expected “career” for women, even as some of them experience ambition for a political career or occupation other than—or in addition to—marriage. The novels also explore women’s limited ability to exit disastrous marriages, even as they include examples of relatively egalitarian marriages that seem to transcend models of husbandly rule and wifely submission. This Article’s close reading of the novels is augmented by literary criticism on Trollope and some contemporaneous writings by nineteenth-century feminists, which provide a counter to Trollope’s portrayal of the feminist positions in the Palliser novels. Because Trollope believed that his novels taught important moral lessons about love, marriage, and the legal and political issues of his day, this Article also considers how Trollope’s complicated stance toward the Woman Question shaped the lessons taught in the Palliser novels