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Challenges Under the Religion Clauses (recording)
No full textThe Court will hear a case from Maine this Term about tuition assistance to sectarian schools. In addition to that case, this panel will discuss other Free Exercise / Establishment Clause cases coming to the Court including potentially more COVID restriction cases, with an eye towards the fallout after the June 2021 decision in Fulton v. Philadelphia
Toward a Virginia Ocean Plan: Lessons and Recommendations from Other States
Get PDFVirginia’s ocean waters feature vast natural resources, and are used by its residents, visitors, and the military for recreation, commerce, and national security. New and intensified uses, such as offshore energy production, aquaculture, and increased shipping could impact Virginia’s ocean resources. To ensure the continued protection of these resources, while allowing them to be used sustainably, the Commonwealth is developing its first ocean management plan. Because several state agencies currently manage Virginia’s territorial sea waters, a coordinated and proactive approach is needed to effectively develop this plan. Developing a Virginia Ocean Plan can help protect the Commonwealth’s ocean resources and facilitate coordination among federal, state, and local bodies as pressures increase.
Virginia can learn from the states that have already developed state ocean plans, as well as from regional ocean planning efforts. The plan can be implemented through enforceable state-level lawmaking, gubernatorial executive orders, memoranda of understanding (MOUs) between state and federal agencies, or formal adoption of its policies and guidelines by relevant state agencies. Additionally, Virginia can build upon the progress it has made regionally as a member of the Mid-Atlantic Regional Council on the Ocean (MARCO) to coordinate with neighboring states and stakeholders to successfully meet the goals of its ocean plan. This white paper analyzes several states’ ocean plans to provide lessons learned and other helpful guidance to Virginia’s ocean planning process. It then recommends potential options and topics to implement the successful practices and avoid negative experiences of other states.
This abstract has been taken from the authors\u27 introduction
Pricing Drugs Fairly
Get PDFDissatisfaction with drug prices has prompted a flurry of recent legislation and academic research. But while pharmaceutical policy often regards fair pricing as a goal, the concept of fairness itself frequently goes undefined. Legal scholarship—even work ostensibly focused on fairness—has not defined and defended an account of fair pricing. Recent legislative proposals in the House and Senate have similarly avoided a determinate position on fairness. This Article explains and defends an account of what makes a price for a drug fair (identifying fair price with social value), argues for implementing fair pricing through a price ceiling grounded in social value, and examines how the proposed price ceiling could overcome legal and political obstacles. By focusing on fairness, this Article pursues a goal that complements, rather than duplicates, recent legal scholarship on pharmaceutical pricing.
This Article makes three contributions. First, it identifies, makes explicit, and categorizes the most prominent conceptions of fairness in drug pricing. Second, it advances an account of fair pricing that centers on a drug’s value to society. Third, it proposes the implementation of fair pricing via a price ceiling that ensures that the price of a drug does not exceed its value to society and explains how this price-ceiling approach would address a variety of legal and political obstacles.
In Part I, the Article categorizes conceptions of fair pricing. It first considers procedural fairness and critically evaluates the view that any price reached in a procedurally fair negotiation is substantively fair. It then reviews four comparators used for assessing substantive fairness: (a) the cost of developing the drug, (b) the drug’s affordability to patients, (c) the drug’s customary price, and (d) the drug’s social value. Part I concludes that social value should be used to identify when a price is unfair, although the other factors can indicate procedural unfairness or serve to justify other policies, such as subsidized insurance. Part II then takes on the task of defining social value. It explains how cost-effectiveness analysis could be used to define social value and argues that cost-effectiveness analysis should be modified to incorporate factors other than overall costs and health benefits, such as fairness to patients with preexisting disabilities and reduction of health disparities. However, this analysis should not be modified to provide greater incentives to treat rare diseases or diseases lacking other treatments.
Part III turns to implementation, arguing that fair pricing can best be achieved through a price ceiling that tracks social value. It explains how such a price ceiling could incentivize the production of socially valuable treatments and describes the legal, ethical, and political advantages of price ceilings over other options, such as reimbursement ceilings. In particular, the availability of treatments whose price exceeds the reimbursement ceiling will lead to administrators enforcing the reimbursement ceiling taking the blame when patients die or suffer illness. In contrast, while price ceilings may discourage the development of costly drugs, they do not require payers to reject identifiable patients who could benefit from existing treatments or families to refuse those treatments. Price ceilings also avoid the legal limitations that private and public insurers face when they attempt to deny coverage for expensive treatments.
Part IV identifies potential legal obstacles to the implementation of a price ceiling and explains how to avoid them. Some obstacles, like preemption and the Dormant Commerce Clause, apply only to state-level efforts. Other obstacles, such as the Takings Clause and a potential revival of Lochner-era freedom of contract, also apply to federal initiatives
Fitbit Data and the Fourth Amendment: Why the Collection of Data from a Fitbit Constitutes a Search and Should Require a Warrant in Light of Carpenter v. United States
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The All Events Test in an Era of Self-Regulation
Get PDFAccrual-method taxpayers must use the all events tests to account for rights and liabilities under contracts for sales of goods and services. These longstanding tests evolved from transactions that involved relatively straightforward exchanges of goods or services for payments, and the tests currently reflect an expectation that a taxpayer will usually make an accrual when a seller’s performance fixes the contracting parties’ respective right to and liability for payment. Business practices have changed such that many sales now occur in relationships where contracting parties assume, monitor, and enforce process-related obligations, including adoptions of codes of conduct by members of global supply chains. This Article explains how these efforts to self-regulate transactions complicate applications of the all events tests because the expectations of performance and consequences of noncompliance for credence attributes of goods or services have uncertain effects on the “fixed” nature of payment obligations. In order to avoid these complications, the Article proposes that the all events tests should recognize an implied requirement of acceptance. Under this proposal, a buyer’s acceptance of goods or services, rather than the seller’s performance, would establish a fixed payment obligation and respect the parties’ efforts to regulate aspects of the sale transaction beyond the mere conveyance of the goods or services.
The Thirteenth Amendment and Equal Protection: A Structural Interpretation to Free the Amendment
Get PDFThe hope is that the Court will one day hold that the Thirteenth Amendment has its own equal protection clause or component and that strict scrutiny will not be used for benign racial classifications designed to eradicate current badges and incidents of slavery. This Article critiques the Court’s decision in the Civil Rights Cases regarding the scope of section 1 of the Amendment and it offers a holistic or structural interpretation of the Amendment to include an equal protection component and a lesser standard of review than strict scrutiny. Essentially, the Thirteenth Amendment, if properly used, could become a public policy of equal protection that influences courts’ interpretation of the Amendment, other constitutional provisions, and statutes
Black Lives Matter Abroad, Too: Proposed Solutions to the Racialized Policing of Ethiopian Jews in Israel
Get PDFThis Note will first discuss the presence of Ethiopian Jews in Israel, and then compare their stature and rights (or lack thereof) to another insular group in Israel—Arab Palestinians. Finally, this Note will discuss possible solutions and remedies to these fatal police shootings. Considering that the possibility of criminal liability for officers is low, this Note will argue that both civil remedies and additional training for police are necessary to avert future shootings of Ethiopian Jews
