3320 research outputs found
Sort by
An O’Neill Institute Briefing Paper: The Supreme Court’s Landmark Decision on the Affordable Care Act: Healthcare Reform’s Ultimate Fate Remains Uncertain
Get PDFThe Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is a landmark on the path toward ensuring universal access to health care in the United States. In a 5-4 decision written by Chief Justice Roberts, the Court upheld the law in its entirety with the sole exception that Congress may not revoke existing state Medicaid funding to penalize states that decline to participate in the Medicaid expansion under the ACA. In this O’Neill Institute Briefing, we explain and analyze the Court’s decision, focusing on the individual purchase mandate and the Medicaid expansion, while also explaining the fundamental shifts in constitutional interpretations that may affect public health, safety and environmental protection in the future.
The precise significance of the individual mandate to the proper functioning of the ACA remains to be seen, primarily because the penalties are small relative to the cost of insurance. The IRS also has little enforcement authority if individuals elect not to purchase insurance. The mandate remains the only mechanism for the ACA’s financial sustainability.
The importance of the Medicaid expansion cannot be overstated, as it is the sole means by which poor Americans will gain coverage. If states decline to participate there may be a social justice disaster in which disparities in access to health insurance in some states actually widen under the ACA as middle-class and well-off Americans gain access to insurance while the poor are left behind.
Justice Roberts sided with the Court’s conservative wing to espouse a narrow view of Congress’ ability to regulate under the Commerce Clause, which could create challenges as future Congresses seek to address national public health problems. Even so, we conclude that the Court’s decision leaves the United States immensely better off in that future debates will likely center around how to ensure access to health care for all, not whether to do so–that debate is over, and the nation should push forward on the path toward universal coverage
International Financial Standards and the Explanatory Force of Lex Mercatoria
Get PDFThe global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse.
First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with some “soft law” international financial standards as both diagnostic and prophylactic tools, has been decidedly mixed, in fact, largely unsatisfactory. Thirdly, the “soft law” discourse in international finance appears strangely remote from the daily grind of international commercial practice, where the discourse is largely unknown. But perhaps in this disconnect between theory and practice lies clues to important normative forces at work in international finance, and in particular the international capital markets. The more one considers the world of international finance, the more obvious become the outlines of centuries old transnational merchant law, the contentious lex mercatoria.
The proposition put forward here is that the formal regulation of financial markets is supported by a body of strong and persistent customary law, a lex mercatoria, a rarely acknowledged but powerful undercurrent in finance, especially in its international iteration. The continued prevalence of oral contracting and the stubborn persistence of self-regulatory principles are examples. There are several intriguing implications to this proposition. Is it possible that the global financial crisis represented not only a failure of formal, state-led regulation, as it surely did, but also a breakdown of a lex mercatoria of finance? If that is the case, international standard setters and national regulators, both, ignore this lex mercatoria (the customs and practices of international finance) at their peril. To do so, would be to miss a true, powerful, source of normativity operating in international financial markets
The Eye Alone Is the Judge: Images and Design Patents
Get PDFDesign patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might take from design patent
The Struggle for Legal Philosophy (\u3ci\u3evis-à-vis\u3c/i\u3e Legal Education): Methods and Problems
No full textThe article challenges the empirical claim that suggests that the legal skills needed to successfully practice law are not--and cannot be--learned at law schools, and contrasts it with the conceptual claim that indicates that the legal tasks needed for practicing law presuppose a legal theory--or at least requires a link between theory and practice. Hence, the dual claim--empirical and conceptual--is that legal philosophy is an important part of a legal curriculum and necessary to bridge, rather than to deepen, the existing gap between theory and practice
What Were They Thinking? Insider Trading and the Scienter Requirement
Get PDFOn its face, the connection between insider trading regulation and the state of mind of the trader or tipper seems intuitive. Insider trading is a form of market abuse: taking advantage of a secret to which one is not entitled, generally in breach of some kind of fiduciary-like duty. This chapter examines both the legal doctrine and the psychology associated with this pursuit. There is much conceptual confusion in how we define unlawful insider trading—the quixotic effort to build a coherent theory of insider trading by reference to the law of fraud, rather than a more expansive market abuse standard—which leads to interesting psychological questions as to the required state of mind. Is it always simple greed? What if there is an element of unconscious misperception—or rationalization—at work? My sense is that the causal explanations for what is charged as insider trading are sometimes quite murky and not easily explained as pure greed. The chapter thus tries to connect the law of insider trading to a more sophisticated approach to state of mind, motivation and causation
Reducing Unlawful Prescription Drug Promotion: Is the Public Health Being Served by an Enforcement Approach that Focuses on Punishment?
Get PDFDespite the imposition of increasingly substantial fines and recently successful efforts to impose individual liability on corporate executives under the Park doctrine, punishing pharmaceutical companies and their executives for unlawful promotional activities has not been as successful in achieving compliance with the Federal Food, Drug, and Cosmetic Act (FD&C Act) as the protection of the public health demands. Over the past decade, the Food and Drug Administration (FDA) and the Department of Justice (DOJ) have shifted their focus from correction and compliance to a more punitive model when it comes to allegedly unlawful promotion of pharmaceuticals. The shift initially focused on imposing monetary penalties and was arguably justified by the expectation that financial punishment would achieve a level of compliance that would reduce the need for correction. By exacting enormous fines from companies, the agencies presumably hoped that the costs associated with unlawful promotion would be too high to justify the monetary benefits of non-compliance. Unfortunately, however, that approach has not been entirely successful. Despite the growth in settlements and penalties, and the recent efforts to hold individual executives liable for corporate misbehavior, the intended impact of substantially increased compliance has only partially materialized. The upward spiraling of settlement amounts and the trend toward prosecuting repeat offenders indicate that a change in approach is necessary.
This article argues that FDA and DOJ cannot justify a continued emphasis on punishment without more demonstrable improvement in compliance and corporate accountability.
The article goes on to describe several proposals to refocus the agencies’ efforts to effectively address the impact of unlawful promotion on public health by returning to an approach that emphasizes the more traditional goals of correction and compliance. It also argues that any meaningful protection of the public health ultimately requires a broader public understanding of the issues surrounding unlawful promotion of pharmaceutical products and greater participation by patients; physicians; health care professionals; and others with an interest in, and the opportunity to, impact this area. Increasing the public’s ability and interest in monitoring companies’ promotional activities at every level will reinforce the benefits of compliance, which will better serve the public health goals of the FD&C Act
National Security in the Information Age
Get PDFThe information environment has been changing right along with the broader security environment. Today, the information environment connects almost everyone, almost everywhere, almost instantaneously. The media environment has become global, and there’s no longer such thing as “the news cycle” —everything is 24/7. Barriers between US and global publics have virtual disappeared: Everything and anything can “go viral” instantly, and it’s no longer possible to say one thing to a US audience and another thing to a foreign audience and assume no one will ever set the statements side by side. The Pakistani military has a very clear idea of what the Secretary of Defense tells Congress about Pakistan, for instance—and Congress has an equally clear idea of how Pakistani leaders talk about the United States to their domestic constituencies.
Technological changes and lower costs have also democratized the media and information environment: Internet and cell phone access is increasingly ubiquitous, and individuals and organizations are ever more reliant on electronic communication. Today, news, commentary, and video can be produced and accessed equally by first world media producers, Washington decision-makers, Iowa housewives, Afghan shepherds, Chinese university students, Colombian insurgents, and Al Qaeda members.
As with the security environment more broadly, the rapidly changing information environment creates both new challenges and new opportunities for the US government. The author emphasizes that this is true across the executive branch. All USG agencies, from Defense to State to Treasury and beyond, are struggling to adapt anachronistic programs and policies
Democracy Promotion: Done Right, A Progressive Cause
Get PDFBy the beginning of the Obama Administration, democracy promotion had become a rather tarnished idea, and understandably so. Like Islam or Christianity, much blood has been shed beneath its banner. It may be true that democracies don’t go to war with one another, but they certainly go to war, and their wars kill people just as dead as the wars undertaken by illiberal regimes. Anyone on the political left can tell the story: During the Cold War, the United States fought endless proxy wars and engaged in a great deal of overt and covert mischief, all in the name of democracy. During the Bush Administration, the idea of democracy promotion became tightly and inexorably bound up with regime change and the carnage of the Iraq War. Because it came to us in a package that included bloodshed, occupation, torture, and indefinite detentions, Bush’s “Freedom Agenda” left a bitter taste in the mouth
The Clinical Mission of Justice Readiness
Get PDFLaw schools strive to teach students to be practice ready. That noble goal, however, is not enough. Because of the powerful role that lawyers play in society, educators must also teach students to be “justice ready.” Justice ready graduates are able to recognize injustice and appropriately evaluate the consequences of their actions in a way that mere practice readiness does not teach. The traditional law school curriculum fails to teach justice readiness, instead inculcating in students a penchant for the status quo—an unjust and unchanging social order. Clinical education is the solution for creating justice ready graduates. Its use of Transformative Learning Theory allows students to learn about justice through experience and creates a long-lasting understanding of the lawyer’s role in society