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Legal Solutions for Universal Health Coverage
No full textAmong all global health initiatives—such as the Global Polio Eradication Initiative, Roll Back Malaria, and the Stop TB Partnership—universal health coverage (often abbreviated as UHC) has garnered the most political attention. The “sustainable development goals” adopted by all United Nations (UN) member states in 2015, have a single health goal, to ensure healthy lives and as well as promote well-being “for all at all ages.” Its most important target is to achieve universal health coverage by 2030.
Advancing the right to health through universal health coverage requires adherence to 5 key values. Health services must be universally accessible, equitable, affordable, high quality, and cost effective
Recommendations and Comments on the Draft Vertical Merger Guidelines
Get PDFThese recommendations and comments respond to the request by the Federal Trade Commission and the Department of Justice’s Antitrust Division for public comment on the draft 2020 Vertical Merger Guidelines. We commend the agencies for updating the 1984 non-horizontal merger guidelines by recognizing the substantial advances in economic thinking about vertical mergers in the thirty-five years since those guidelines were issued. Our comments emphasize four issues: (i) the treatment of the elimination of double marginalization (“EDM”), particularly that the draft vertical merger guidelines appear inappropriately to make proof of cognizability part of the agencies burden and that they appear to inappropriately treat the merging firm’s failure to have eliminated double marginalization pre-merger as proof that the merger would lead to EDM and that the post-merger EDM would be merger-specific; (ii) the seemingly arbitrary and inappropriately permissive safe harbor; (iii) the inappropriate (though perhaps unintended) apparent requirement that harms be quantified; and (iv) the inappropriate (though perhaps unintended) apparent requirement that the agencies show that foreclosure would not have been profitable before the merger. We are concerned that these features of the draft Guidelines will lead to under-enforcement and false negatives (including under-deterrence)
Promise, Agreement, Contract
Get PDFIt is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law—into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do no harm to that culture or to people’s ability to act morally. Second, contract can be understood as the legal analog to promise. Both contract and promise enable people to undertake new obligations to one another when they wish. Each is a type of normative power, the one legal, the other moral. The Chapter concludes by arguing that these two ways of thinking about contract law are not mutually exclusive. Contract law both imposes on parties to exchange agreements a legal obligation to perform for reasons independent of the parties’ possible contractual intent, and confers on them the power to undertake that legal obligation when they so intend because they so intend
Why a Wealth Tax is Definitely Constitutional
Get PDFWealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”
These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform legislation is definitely constitutional and thus capable of raising substantial revenues to fund new spending programs.
Constitutional scholars disagree about whether a new federal wealth tax would need to be uniform or apportioned in order to be constitutional. We explain how wealth tax legislation could be drafted to ensure its constitutionality regardless of how the Supreme Court ultimately decides on this question. In particular, we explain how Congress could design an apportioned federal wealth tax made equitable through the use of a fiscal equalization program, and could legislate this as a fallback option in case the Supreme Court were to rule against an unapportioned federal wealth tax
Issuance of the Keystone XL Permit: Presidential Prerogative or Presidential “Chutzpah”
Get PDFThis article uses President Trump\u27s issuance of the Keystone XL Pipeline permit to illustrate the dangers of an imperial presidency, one in which the exercise of discretionary authority, based on neither the text of Article II of the Constitution nor a statute, will in all likelihood be unchecked by Congress, the courts, or popular opinion. To understand the dimensions of this concern, Part I of this article briefly describes the process and requirements for a presidential permit. Part II identifies key facts surrounding issuance of the Keystone XL Pipeline permit, the chronology of its issuance, and commonly given reasons supporting or opposing the permit. Part II includes a discussion of non-legal arguments favoring permit issuance, such as its projected economic and national security benefits and the promotion of beneficial relations with a border country, as well as those against its issuance, such as its projected environmental harm and the dangerous precedent it may set as a way to avoid environmental accountability for presidential activities that may have a significant adverse effect on the environment.
Part III looks more closely at the constitutional arguments justifying the permit\u27s issuance, finding potential support in the President\u27s prerogative powers as well as in his constitutionally assigned role as Commanderin-Chief of the Army and Navy, his duty to oversee foreign relations, and to take care that the laws are faithfully executed. Part IV identifies the extent to which Article II cabins the President\u27s authority to issue the Keystone XL Pipeline permit and how its issuance may violate the separation of powers doctrine. The arguments that the courts, Congress, and the public will check any abuse of power by the President and that this use of presidential power is supported by precedent are set out in Part III and then critiqued in Part IV.
The last part of the article, Part V, broadens the perspective on the issuance of the Keystone XL Pipeline permit. More specifically, the Part discusses how its issuance reflects an accretion of presidential power and questions the wisdom of potentially unbalancing the balance of powers between the two branches of government in the current political environment. Much of the Part\u27s discussion centers on then--Professor Elena Kagan\u27s strong support for a dominant president, what she calls a “presidential administration,” and those who disagree with that idea.
The article concludes the President may have stepped beyond the limits of his Article II enumerated and discretionary constitutional powers by issuing the Keystone XL Pipeline permit. In treading on Congress\u27 constitutional authority, President Trump\u27s action risks the creation of an uncheck-able imperial presidency, beyond even what Justice Kagan envisioned. This type of presidency may do serious permanent damage to the constitutional structure of our government, outlasting, in the specific situation, President Trump\u27s days in office
COVID-19 Reveals Urgent Need to Strengthen the World Health Organization
No full textFrom the time China reported a novel coronavirus to the World Health Organization (WHO) on December 31, 2019, it took barely 4 months to become a pandemic, killing hundreds of thousands, and growing daily. It is now clear that the novel severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) had been circulating in Wuhan, China, for weeks before China reported it to the WHO, and that authorities hid information. China maintained SARS-CoV-2 was not readily transmissible between humans. The WHO published China’s data, but without independently verifying their accuracy.
President Trump subsequently blamed the WHO for its slow and “China-centric” response. On April 14, 2020, he announced a suspension of US voluntary contributions to the agency.
Although the WHO was unable to verify the Chinese data, it was proactive, including widely sharing the genomic sequencing of the virus with international scientists. On January 30, 2020, the WHO declared coronavirus disease 2019 (COVID-19) a global health emergency, urging rigorous containment including testing, contract tracing, and quarantine. Broad criticism of the organization is unfounded, and is particularly damaging because the pandemic is poised to deeply affect sub-Saharan Africa. That said, legitimate concerns about the WHO include its reluctance to insist China allow a robust WHO team on the ground and its praising of China’s transparency.
The crisis now unfolding could also become a historic opportunity to strengthen the WHO. Reforms must start with recognizing the global public good achieved by the WHO
Legal Interventions to Address US Reductions in Life Expectancy
No full textIn a 2019 report by Woolf and Schoomaker, average life expectancy in the U.S. was revealed to be in decline from 2014-2017, a trend which the COVID-19 pandemic is anticipated to exacerbate in 2020. As we assess in this commentary, concerted actions to address these declines are highly warranted. Among many potential solutions, “legal determinants of health,” namely how law can address underlying causes of premature mortality, provide clear options for policymakers seeking to reverse these trends for the next decade. Cost-effective, evidence-based laws can safeguard the public’s health, reduce disparities, and extend life expectancy across socio-economic groups, especially in disproportionately impacted U.S. regions. These benefits are often achievable without substantial public sector funding increases.
Yet, public health laws are underutilized. Variations in legal innovations lead to uneven applications of evidence-based laws and geographic disparities in key health indicators. Federal inaction lends to legal inconsistencies in socially controversial spheres, including firearms, reproductive health, and commercial taxation and regulation. Federal and state authorities increasingly preempt lower level public health laws, impeding grassroots initiatives in food and nutrition, environment, or consumer litigation.
Declinations in U.S. life expectancy requires a resetting of national health priorities especially against the backdrop of the greatest public health infectious disease threat of the 21st century. Evidence-based, cost-effective laws can reverse ongoing declines in health and longevity, and help improve social determinants
The International Health Regulations (2005), the threat of populism and the COVID-19 pandemic
Get PDFThe global response to the COVID-19 pandemic has laid bare weaknesses and major challenges in the international approach to managing public health emergencies. Populist sentiment is spreading globally as democratic nations are increasing their support for or electing governments that are perceived to represent “traditional” native interests. Measures need to be taken to proactively address populist sentiment when reviewing the IHR (2005) effectiveness in the COVID-19 pandemic. We discuss how populism can impact the IHR (2005) and conversely how the IHR (2005) may be able to address populist concerns if the global community commits to helping states address public health threats that emerge within their borders
Science, Leadership, and Public Trust in the COVID-19 Pandemic
Get PDFAdherence to science in health messaging and public policies helped determine which countries have performed well in containing COVID-19. In the United States, President Trump has interfered with and undermined the work of scientific agencies such as the Centers for Disease Control and Prevention and the Food and Drug Administration, generating public distrust in science and amplifying fears about a future vaccine’s safety and effectiveness. He has also announced that the United States will not join a global partnership that aims to support the development of a vaccine and share access to it.
Science does not always tell us what we want to hear. But we won’t exit this pandemic without political leaders backing sound science
Facilitating Access to a COVID-19 Vaccine through Global Health Law
Get PDFThis column explores the global health law reforms necessary to progressively realize universal access to a future COVID-19 vaccine. We begin by explaining the importance of global health law in the distribution of essential vaccines as a determinant of public health. The column then turns to examine the human rights foundations of global health law, conceptualizing vaccination access as a universal human right. We find that it will be crucial to develop legal commitments to ensure vaccine access prior to a scientific breakthrough, analyzing the legal barriers that impede global access and the global health law reforms necessary to facilitate global solidarity