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Affordable Care Act Litigation: The Supreme Court and the Future of Health Care Reform
Get PDFIn Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.
The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to hospitals, the insured, and tax payers. Because most uninsured people will eventually require uncompensated care, they impose costs on everyone through higher taxes and insurance premiums. Further, although the ACA’s mandate is unusual, it is not unprecedented. Mandatory worker contributions to Medicare, for example, are a compelled purchase of health insurance. The necessary and proper clause, which permits Congress to pass laws rationally related to the exercise of federal powers, may be the best argument in favor of the mandate because the mandate is necessary for the other insurance market reforms to work.
If the Court were to strike down the mandate, it would then have to determine whether the mandate is severable from the rest of the ACA. Although the ACA did not explicitly state that if part of the act were deemed unconstitutional the rest would survive, most ACA reforms are severable because they are unrelated to the mandate, such as funding for public health and community health centers. The more difficult question is whether the mandate is so intertwined with the ACA’s still unimplemented market reforms that the Court must strike them down.
The Court will also review the constitutionality of expanding Medicaid to all individuals with household incomes below 138% of the federal poverty level. The states argue that Medicaid expansion is unduly coercive because they could lose all Medicaid funding and not just the funding related to the expansion. The Court, however, is unlikely to uphold the coercion theory because state participation in Medicaid has always been optional and some states have openly discussed exercising their option to discontinue the program.
Finally, the Court will hear technical arguments concerning the Anti-Injunction Act (AIA), which prohibits lawsuits “for the purpose of restraining the assessment or collection of any tax.” The Court is unlikely to invoke the AIA because neither the administration nor the states contend that it applies.
The ACA will achieve near universal coverage, something that seemed unimaginable just a short time ago. Health reform envisages a social contract in which everyone shares the cost, recognizing that virtually everyone will become ill one day. The ACA and its individual mandate are not unjustified limits on freedom, but rather are vital to a decent society
Where to Begin? Training New Teachers in the Art of Clinical Pedagogy
Get PDFLegal educators and the legal academy have long made the mistaken assumption that new teachers have an intuitive grasp of teaching methodology based on their experiences as students, and that therefore they can begin and continue teaching throughout their careers without any understanding of teaching methodology. Clinical teachers in particular face unique pedagogical challenges relating to class goals, supervisory methods, feedback, and grading. These challenges are magnified by the existence of clients and by the need to engage with students regarding the ethics of legal practice and cultural difference.
This article attempts to set forth some of the critical questions new teachers must answer by describing the goals and content of a clinical pedagogy course designed by the Georgetown Law Center faculty to train graduate clinical teaching fellows and facilitate their entry into the academy. The article (and program it describes) rests on six fundamental beliefs: clinical teaching is different from and more expansive than doctrinal teaching or professional legal practice; clinical teaching is goal driven and based on backward design; faculty intervention must be intentional and based on making choices that further a student’s education; clinical education should be based on an expansive theory of justice; client and student needs are equally important in a clinical program and neither need be sacrificed for the other; and clinical teaching is personal and designed to accept students where they are and to maximize their learning potential.
The Georgetown training program emphasizes intentional and reflective supervision and creative and adaptive teaching methods. The major focuses of the course are the history of clinical education and its contemporary status in the academy; techniques of supervision and reflection; relevant values, ethics, and morals of clinical teaching; pedagogical methods for structuring classroom teaching; and the interrelationship of feedback, evaluation, and grading in clinical courses. The article provides the syllabus for the program and engages in an in-depth discussion of each element of the course to help new clinical teachers answer the question “where should I begin?
The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side
Get PDFWas the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author of this essay makes the case that the policy was in fact illegal, and that the nation must hold the architects of the plan accountable. He also offers brief thoughts on the legal and policy issues surrounding detention and targeted killing in the ongoing conflict with Al Qaeda, stressing that while neither is flatly impermissible in an armed conflict, accountability and democracy concerns demand greater transparency
Behavioral Approaches to Corporate Law
Get PDFThis chapter reviews the challenges associated with developing a plausible theory of why psychological heuristics and biases might persist in high-stakes business settings. Specific attention is given to issues of loyalty on corporate boards, behavioral finance, and corporate cultures
Bridging International Law and Rights-Based Litigation: Mapping Health-Related Rights Through the Development of the Global Health and Human Rights Database
Get PDFThe O\u27Neill Institute for National and Global Health Law at Georgetown University, the World Health Organization, and the Lawyers Collective have come together to develop a searchable Global Health and Human Rights Database that maps the intersection of health and human rights in judgments, international and regional instruments, and national constitutions. Where states long remained unaccountable for violations of health-related human rights, litigation has arisen as a central mechanism in an expanding movement to create rights-based accountability. Facilitated by the incorporation of international human rights standards in national law, this judicial enforcement has supported the implementation of rights-based claims, giving meaning to states\u27 longstanding obligations to realize the highest attainable standard of health. Yet despite these advancements, there has been insufficient awareness of the international and domestic legal instruments enshrining health-related rights and little understanding of the scope and content of litigation upholding these rights. As this accountability movement evolves, the Global Health and Human Rights Database seeks to chart this burgeoning landscape of international instruments, national constitutions, and judgments for health-related rights. Employing international legal research to document and catalogue these three interconnected aspects of human rights for the public\u27s health, the Database\u27s categorization by human rights, health topics, and regional scope provides a comprehensive means of understanding health and human rights law. Through these categorizations, the Global Health and Human Rights Database serves as a basis for analogous legal reasoning across states to serve as precedents for future cases, for comparative legal analysis of similar health claims in different country contexts, and for empirical research to clarify the impact of human rights judgments on public health outcomes
Keynote Address: 14th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations
Get PDFKeynote address to the 14th Annual Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations, November 18, 2011 at Georgetown University Law School.
This conference explores the regulatory takings issue as it relates to land use and environmental regulation. The conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent decisions and pending court cases. Some of the topics to be discussed include takings claims generated by major flooding events in the Mississippi River, including Hurricane Katrina and the Mississippi floods of 2011, the takings issues raised by the threat of climate change, the tension between traditional notions of public rights in water resources and modern takings cases arising from regulation of water uses, questions about the proper application of Penn Central, and the problem of so-called “unsuccessful exactions.
The Future Impact of Same-Sex Marriage: More Questions Than Answers
Get PDFSame-sex relationships have already significantly altered family law, by leading to new formal relationship statuses and incorporation of the principle that both of a child’s legal parents can be of the same sex. This essay explores further changes that may lie ahead as same-sex marriage debates increasingly affect both family law and the social meanings of marriage. Marriage as an institution has changed most dramatically because of the cumulative effects of the last half-century of de-gendering family law. Same-sex marriage–and perhaps even more so, the highly visible cultural debate over it–is contributing to this process.
The author argues that the greatest potential for changes in social meaning will arise in three areas for which there is empirical evidence of significant differences between gay and straight couples: division of household labor, sexual exclusivity, and childrearing. In each, although recent data indicate some signs of converging behaviors between the two types of couples, major differences appear likely to continue. While the number of same-sex couples in the population is too small to produce significant change in overall patterns of behavior, the issue of gay marriage has generated so much attention and debate that a mixed process of gay assimilation to and effect on the social meaning of marriage is a reasonable expectation.
As to future legal change, the author identifies three questions likely to arise in the relatively near future that will flow, directly or indirectly, from same-sex marriage:
First, we may see an increasing uptake by different-sex couples of marriage equivalent and marriage alternative statuses (e.g., domestic partnerships) that have grown out of LGBT rights efforts. If present demographic trends continue, the group of different-sex couples most likely to seek access to these new statuses will be persons middle-aged or older.
Second, federal recognition of same-sex marriage, which will occur if the Defense of Marriage Act is invalidated or repealed, could significantly increase the number of same-sex couples who marry. The end of DOMA is also likely to further complicate the law of interstate recognition, as more gay couples have their marriages recognized for federal law purposes, such as tax, but not under state laws that regulate divorce, custody and property division. Since 60 per cent of same-sex marriages are performed for out-of-state residents, the complexity of federal-state conflict regarding recognition of particular marriages is likely to increase dramatically.
Lastly, the author questions whether the issue of “accidental procreation” that has become a theme in court decisions related to same-sex marriage may migrate to marriage law more generally. In particular, she suggests that a more stringent set of rules expanding support obligations in marriages (whether of different- or same-sex spouses) in which children are born or adopted would better serve the purposes advanced by social conservatives who purport to argue on behalf of children’s welfare
De-concentrating Poverty: De-constructing a Theory and the Failure of Hope
Get PDFSince the late 1980s, led by William Julius Wilson’s The Truly Disadvantaged, scholars have been writing about the social problems caused by the concentration in residential communities of high levels of poverty. Even before Wilson’s book, government policy, which previously had resulted in racially and economically segregated communities, had begun to shift towards de-concentration. The consent decree in Hills v Gautreaux, and the HOPE VI and Moving to Opportunity Programs all pointed towards de-concentration of poverty. Commentators have suggested both benign and not-so-benign reasons for the policy shift.
There were a variety of quite hopeful goals promoted by advocates of the policy changes. While some of the desired outcomes of these programs have been met, I argue in this paper that the programs, on the whole, have not been successful in achieving their intended purposes. Moreover, I argue that due to the destruction of existing communities the costs of these programs, particularly the HOPE VI program, far outweigh their benefits. I point out some of the benefits derived from existing communities and some of the costs of forced relocations from them.
I do not argue here for a return to policies leading to high concentration poor communities and certainly not for policies leading to dysfunctional communities. I argue instead for a policy that promotes voluntary relocation of residents in such communities with all appropriate governmental support; for a policy that results in the production of more decent and affordable units throughout the economy; and mostly for the commitment to improve existing communities so that they are places where lower income residents may live with dignity and pride
Train Wreck: The U.S. Violation of the Chemical Weapons Convention
Get PDFThe 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under current projections, it will not complete the process until 2023–more than 11 years late.
This article examines the causes of that default and analyzes its legal and policy consequences. It concludes that the United States stands in material breach of the CWC; that none of the putative legal excuses or justifications is adequate to absolve the violation; and that other parties may have recourse to remedies under the CWC, under the Vienna Convention on the Law of Treaties, or under general international law. Moreover, it concludes that the striking U.S. diplomatic success in largely finessing this issue through the CWC’s treaty implementation bodies is misguided–although it has allowed the United States to escape censure or punishment in this instance, that accomplishment deserves the true long-run U.S. interest in insisting upon the importance of strict compliance with arms control treaties and in validating the rule of international law more generally
Do Damages Caps Reduce Medical Malpractice Insurance Premiums?: A Systematic Review of Estimates and the Methods Used to Produce Them
Get PDFDespite common claims made in policy debates, the theoretical connection between tort reform and medical malpractice insurance premiums is ambiguous. Simple models suggest reforms such as statutory damages caps reduce premiums. More elaborate models that account for changes in physician behavior suggest caps might increase or have no impact on premiums. A number of empirical studies have been conducted to estimate the impacts of caps on premiums, and several qualitative literature reviews have attempted to draw general conclusions from the literature. No review, however, has offered a comprehensive and systematic analysis of the full set of empirical studies. This chapter fills that gap. We provide a first glimpse at the wide methodological variations in the studies that employ regression analysis to estimate the impacts of caps on medical malpractice insurance premiums. We describe 16 empirical studies that report 197 estimates of the impact of caps on premiums. Using a theory-driven framework to develop a set of best practices, we find that little weight can be put on any one study due to broad methodological shortcomings. This chapter highlights the need for better data and additional research on the impact of caps on premiums