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The Dynamism of Health Law: Expanded Insurance Coverage as the Engine of Regulatory Reform
Get PDFCan law improve the delivery of health care? The predominant view is that law serves as a barrier to reforming the health care delivery system. Health law scholars of all stripes blame regulations for impeding innovation, limiting competition, and exacerbating fragmentation in health care.
I argue that this view neglects an important—but overlooked—feature of health law: the dynamic relationship between laws that expand health insurance coverage and laws that regulate the delivery of health care. By expanding health insurance coverage and increasing the demand for health care, laws such as Medicare, Medicaid and the Affordable Care Act catalyze policymakers to experiment with reforms to delivery system regulations over time. I chart the evolution of three key areas of delivery system law, and find that insurance expansions have contributed to dramatic changes in each of these areas.
Recognizing health law’s “dynamism” sheds light on two debates that are central to health care reform. First, contrary to what some scholars have argued, it reveals that expanding health insurance coverage should be viewed as a catalyst for delivery system reform, rather than being in competition with it. Second, it strengthens the case for further expanding health insurance coverage. I argue that a dynamic regulatory system is better able to address problems of access, costs, and quality; to adapt to other changes in the underlying health care system; and to facilitate policy learning
Disinformation Legislation and Freedom of Expression
Get PDFThe rise of disinformation on social media has prompted governments around the world to enact legislation that may affect every person’s right to freedom of opinion and expression. This Note seeks to explore the rise of disinformation and the legal framework that applies and to highlight some of the recent proposals to combat disinformation on social media
When Agencies Make Criminal Law
Get PDFThe nondelegation doctrine prohibits a legislature from delegating its power to an administrative agency, yet it is famously underenforced—even when the delegation results in the creation of criminal offenses (so-called “administrative crimes”). While this practice appears to scandalize the hornbook presumption that legislatures alone define criminal offenses, it has long been ratified by the Supreme Court and has received little scholarly attention. The few commentators who have addressed administrative crimes highlight the intuition that criminal sanctions are uniquely severe and thus deserving of a more rigorous nondelegation analysis, but they stop there. They do not precisely link the severe aspects of criminal punishment with a requirement for the type of institutions that can create criminal law. This Article provides that link. I argue that the two most significant dimensions of criminal punishment—community condemnation and liberty deprivation—implicate the concerns of two prominent political theories of punishment: expressivism and liberalism. A latent but mostly unstated premise of both theories, I claim, is that criminalization must be undertaken by a democratic institution. Given this, administrative crimes should be seen as illegitimate under either conception of state punishment
Loser Takes All: Multiple Claimants & Probabilistic Restitution
Get PDFConsider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this Article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution claims involving multiple claimants. In such cases, a wrongdoer was enriched at the expense of others—sometimes a great many others—and it is therefore difficult to determine exactly which possible victim is indeed the source of the wrongdoer’s enrichment. In such cases, it can be near impossible to preponderantly prove the identity of the claimant at whose expense the wrongdoer was enriched. This Article is the first to identify this problem as a reoccurring pattern in restitutionary claims.
By making this novel contribution, the Article fills an important gap in the literature and identifies a new paradigm within the law of restitution, that of causal ambiguity in multiple-claimant cases. This vacuum in the literature on restitutionary claims is especially striking, considering the vast scholarship on a closely related topic, namely causal ambiguity in multiple-defendant tort cases.
The Article argues and demonstrates that the existing rules of the law of restitution do not provide appropriate solutions in multiple-claimant cases. Under existing law, many deserving claimants—sometimes all of them—can be left with no remedy, thereby denied of their rights and not compensated for harms they suffered at the hands of a wrongdoer. Drawing on the more developed literature on causal ambiguity in tort law, we propose a solution for this injustice by presenting, for the first time, a new concept of probabilistic restitution. The Article shows that the proposed regime can lead to just and efficient outcomes, serving the goals of both interpersonal justice and deterrence
Reconstruction
Get PDFThe U.S. Supreme Court’s decisions interpreting the U.S. Constitution in general and the Reconstruction Amendments in particular substantially constrain the ability of legislative and executive actors to address a variety of hot-button political issues, including abortion, gay rights, and affirmative action. So important are the Court’s decisions that the ability to appoint Justices who will shift the Court’s direction has been a central issue in recent presidential campaigns. Throughout history, decisive shifts in the Court’s composition have resulted in correspondingly dramatic shifts in constitutional doctrine. Yet surprisingly, these dramatic shifts have occurred with the Court rarely overturning any precedent.
Although others have identified selected instances of the Court engaging in stealth revision of precedent, this Article is both the first to provide a detailed taxonomy of the methods employed and to exhaustively consider their use in construing the Reconstruction Amendments. This stealth process, which this Article refers to as judicial reconstruction, occurs when the Court employs one or more of three different methods of transforming constitutional doctrine: selective quotation of precedent; re-characterization of precedent; and citations to “dissenting concurrences”—separate opinions in earlier cases that are concurrences in form but dissents in substance. Through the use of these methods, liberal and conservative justices alike have dramatically transformed constitutional law even when their decisions are unsupported by and at times diametrically at odds with the Court’s earlier precedents.
This Article concludes that U.S. Senators and commentators, with their almost laser-like focus on fidelity to stare decisis during the confirmation process, have overlooked—and perhaps even fostered—the opaque practice of reconstructing rather than the transparent process of overruling precedent. It further concludes that those examining judicial nominees’ commitment to respecting precedent should examine not merely their formal fidelity to stare decisis but instead their history of and views on reconstructing precedent
Meta-Evidence and Preliminary Injunctions
Get PDFThe decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice.
In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules at the preliminary injunction stage, then, would not exclude nearly as much evidence as courts may have assumed.
I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. Courts should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial
