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Does Interest Convergence Today Offer Opportunities for the Working Class, Much as It Did for Minorities in the Fifties and Sixties?: A Comment on Spencer Bowley
Get PDFThe Folklore of Unfairness
Get PDFThe Federal Trade Commission Act\u27s ban on unfair ... acts and practices would, on its face, seem to give the FTC an awesome power to define proper treatment of consumers in changing conditions. But even in a world of widespread corporate surveillance, ongoing racial discrimination, impenetrably complex financial products, pyramid schemes, and more, the unfairness authority is used rarely, mostly in egregious cases of wrongdoing. Why? The standard explanation is that the more expansive notion of unfairness was tried in the 1970s, and it failed spectacularly. The FTC of this era was staffed by bureaucrats convinced of their own moral superiority and blind to the self-correcting dynamics of the market. When the FTC finally reached too far and tried to ban television advertising of sugary cereals to children, it undermined its own legitimacy, causing Congress to put pressure on the agency to narrow its definition of unfairness. This Article argues that this standard explanation gets the law and the history wrong, and, thus, that the FTC\u27s unfairness authority is more potent than commonly assumed. The regulatory initiatives of the 1970s were actually quite popular. The backlash against them was led by the businesses whose profit margins they threatened. Leaders of these businesses had become increasingly radicalized and well-organized and brought their new political clout to bear on an unsuspecting FTC. It was not the re-articulation of the unfairness standard in 1980 that narrowed unfairness to its current form, but rather the subsequent takeover of the FTC by neoliberal economists and lawyers who had been supported by these radicalized business leaders. The main limitation on the use of the unfairness authority since then has been the ideology of regulators charged with its enforcement. In fact, the conventional morality tale about the FTC\u27s efforts in the 1970s are part of what keeps this ideology dominant. A reconsideration of the meaning of unfairness requires situating the drama of the 1970s and 80s in a longer struggle over governance of consumer markets. Since the creation of the FTC, and even before, an evolving set of coalitions have battled over what makes markets fair. These coalitions can be divided roughly into those who favor norm setting by government agencies informed by experts held accountable to democratic publics and those who favor norm setting by business leaders made accountable via the profit motive. The meaning of unfair ... acts and practices has been defined and redefined through these struggles, and it can and should be redefined again to reconstruct the state capacity to define standards of fair dealing
The Access-to-Care Epidemic
Get PDFAmong the many challenges it has created, the COVID19 pandemic has exacerbated the United States\u27 access-to-care problem. While millions of individuals have confronted this problem for years in the context of chronic disease management, mental illness, and other diseases and injuries, many Americans are facing serious access-to-care issues for the first time during the pandemic. Recognizing the acuity of this problem, states adopted temporary policies to combat it. One of the most important policy solutions has been the relaxation of state scope-of-practice laws that inhibit the ability of many healthcare providers, such as nurse practitioners, to deliver healthcare. These temporary relaxations offer insight into longer-term solutions to the longstanding access-to-care issues that pervade the American healthcare system.
While some states have changed their scope-of-practice laws to allow nurse practitioners to practice independently (on a permanent basis), many states have refused to do so, citing patient safety concerns. To evaluate these concerns, this Article examines the impact of relaxing these laws in the context of another familiar public health crisis-the opioid epidemic. This purported tension, between access and safety, is most directly studied in the context of the opioid epidemic, which arose within the healthcare system itself and is intimately connected to patient safety. The opioid epidemic is, therefore, an ideal setting in which to evaluate patient safety concerns.
Analyzing a restricted-access dataset of all opioid-related deaths between 2005 and 2017, I find no empirical evidence to support the contention that relaxing scope-of-practice laws endangers patient safety. Instead, I find consistent and statistically significant evidence that eliminating scope-of-practice restrictions reduces opioid-related deaths by between 5 and 11 percent. These results demonstrate that, had all states allowed nurse practitioners to practice independently, five thousand fewer people would have died of an opioid overdose in 2018 alone. This evidence supports (1) making the temporary relaxations of scope-of-practice laws permanent and (2) expanding these relaxations to other states that have always maintained restrictive laws. Not only will removing legal barriers to the provision of care ameliorate the effects of the current pandemic, but also it will address many of the pervasive problems that predate, and will postdate, COVID-19. This Article engages with the results of the empirical analysis to explore several state and federal policy options to relax scope-of-practice laws and meaningfully improve access to care permanently
Fame, Infamy, and Canonicity in American Constitutional Law
No full textAn analysis of how problematic laws ought to be framed and consideredFrom the murder of George Floyd to the systematic dismantling of voting rights, our laws and their implementation are actively shaping the course of our nation. But however abhorrent a legal decision might be—whether Dred Scott v. Sanford or Plessy v. Ferguson—the stories we tell of the law’s failures refer to their injustice and rarely label them in the language of infamy. Yet in many instances, infamy is part of the story law tells about citizens’ conduct. Such stories of individual infamy work on both the social and legal level to stigmatize and ostracize people, to mark them as unredeemably other.Law’s Infamy seeks to alter that course by making legal actions and decisions the subject of an inquiry about infamy. Taken together, the essays demonstrate how legal institutions themselves engage in infamous actions and urge that scholars and activists label them as such, highlighting the damage done when law itself acts infamously and focus of infamous decisions that are worthy of repudiation. Law\u27s Infamy asks when and why the word infamy should be used to characterize legal decisions or actions. This is a much-needed addition to the broader conversation and questions surrounding law’s complicity in evil.https://scholarship.law.ua.edu/fac_bookchapter/1003/thumbnail.jp
Socially Distant Health Care
Get PDFThe COVID-19 pandemic has elucidated many problems within the American health care system, chief among them the continuing access-to-care issue. Though the Affordable Care Act increased access to health insurance, the current pandemic has demonstrated that health insurance alone is not enough. Communities need access to health care providers. Indeed, many fully insured Americans across the country are experiencing what many have faced on a daily basis: the inability to access a health care provider Rural areas and communities of color regularly battle an inability to obtain care from health care professionals and have done so for many years. Much of the care demanded during the pandemic related to COVID-19 itself; but the pandemic also created access-to-care problems due to quarantines and shut-downs instituted to slow its spread. These measures have prevented millions from receiving necessary care for chronic diseases, simple injuries, and mental health needs, among others. Despite the tragic consequences of the COVID-19 pandemic, one of the bright spots has been state and federal responses designed to increase access to health care providers. One of the most important mechanisms that governments have employed to increase access to care has been telehealth. Though telehealth has been possible for decades, the federal government and many state governments maintain salient legal barriers to its use. Congress recently considered the Protecting Access to Post-COVID-19 Telehealth Act of 2021, which seeks to remove some barriers to accessing telehealth. Against this backdrop of political hungerfor continued improvement in telehealth access, this Article explores the policy experimentation catalyzed by the COVID-19 pandemic to make specific policy prescriptions aimed at alleviating both acute and chronic access-to-care issues. It argues that, following the pandemic, federal agencies and states should continue to dismantle barriers to telehealth as an important toolfor increasing access to health care providers among residents of rural areas and communities of color that have historically lacked reliable access to providers. Importantly, governments at both levels should make permanent many of the temporary policies they have instituted to improve access to telehealth and, therefore, health care more generally
Groundhog Law
Get PDFAn unexpected question from a conference participant sends Rodrigo in search of the professor\u27s counsel. A young stranger from another discipline had asked him why law seems never to advance and posited that the reason may be that, lone among disciplines, law is uninterested in advancing human knowledge. The questioner even raised the possibility that law may not belong on a university campus along with departments such as Physics, English, and History, and might well consider relocating to community colleges where it would find a disciplinary home along with courses on welding, automobile mechanics, and high-speed cooking.
Rodrigo, who at the time had found himself able to muster only a feeble reply, seeks a better defense of his discipline. In particular, he was struck by the stranger\u27s observation that law is the only academic field where it is a positive attribute to say exactly what someone else said earlier
Cannabis Banking: What Marijuana Can Learn from Hemp
Get PDFMarijuana-related businesses have banking problems. Many banks explain that, because marijuana is illegal under federal law, they will not serve the industry. Even when marijuana-related businesses can open bank accounts, they still have trouble accepting credit cards and getting loans. Some hope to fix marijuana\u27s banking problems with changes to federal law. Proposals range from broad reforms removing marijuana from the list of controlled substances to narrower legislation prohibiting banking regulators from punishing banks that serve the marijuana industry. But would these proposals solve marijuana\u27s banking problems?
In 2018, Congress legalized another variant of the Cannabis plant species: hemp. Prior to legalization, hemp-related businesses, like marijuana-related businesses, struggled with banking. Some hoped legalization would solve hemp\u27s banking problems. It did not. By analyzing the hemp banking experience, this Article provides three insights. First, legalization does not necessarily lead to inexpensive, widespread banking services. Second, regulatory uncertainty hampers access to banking services. When banks were unsure what state and federal law required of hemp businesses and were unclear about bank regulators\u27 compliance expectations for hemp-related accounts, they were less likely to serve the hemp industry. Regulatory structures that allow banks to easily identify who can operate cannabis businesses and verify whether the business is compliant with the law are more conducive to banking. Finally, even with clear law and favorable regulatory structures, the emerging cannabis industry will still present credit, market, and other risks that make some banks hesitant to lend