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Will Americans Embrace Single-Payer Health Insurance: The Intractable Barriers of Inertia, Free Market and Culture
Get PDFIn a country that prides itself on equality of opportunity, why is there so little equality when it comes to healthcare? Why does the value of equality of opportunity not translate into social solidarity? This Article seeks answers to these questions. Risking the label of socialist, I posit that the most cost-effective, efficacious, and efficient solution to the health care mess that the United States is in is universal single-payer reform with the federal government as that payer.
Part I examines the United States\u27 current climate as it affects health care reform. In Part II, this Article scrutinizes recent state health care reform legislation, specifically in California and Massachusetts. Part III evaluates current national reform efforts, while Part IV argues that though the barriers to implementing single-payer health insurance may be insurmountable at this time, it is the best answer to our health care crisis
Following the Money – the Chaotic Kerfuffle Over Residential Insurance Proceeds that Simultaneously are the Only Rebuild Funds and the Only Mortgage Collateral
Get PDFIn an average year in the United States, 30,000 homes are lost to fire, flood, or another similar disaster. In 2003, one of those homes was mine. Since that time, I have spent literally thousands of hours counseling hundreds of survivors of other disasters (including wildfires, Hurricane Katrina, and the crash of a military jet into a residential neighborhood) on the unique set of emotional, financial, and legal challenges that define their road to recovery. One of the recurring and yet repetitively unanticipated challenges is the tug of war between homeowners and their mortgage lender/mortgage servicer over money. That challenge is the focus of this article.
This article will sort out the legal validity to each party\u27s position. The issues reduce to six questions: 1. Does the bank have rights in all insurance proceeds, just the proceeds insuring the house itself (as opposed to other commonly insured losses, such as the personal belongings in the house or landscaping and other structures external to the house), or something in-between? 2. To what extent does the bank have rights in insurance proceeds if the balance of those funds exceeds the current outstanding principal balance of the mortgage. Does the bank\u27s rights extend to the overage? 3. As to the funds the bank has rights in, is there a choice available between using the money to rebuild or to pay off/pay down the mortgage, and if there is a choice, does the bank or the homeowner hold the choice? 4. During the time the bank holds whatever money the bank gets to hold, does the money accumulate interest for the benefit of the homeowner? 5. To the extent the money is being used to fund a rebuild, at what interim junctures, if any, must the bank partially release funds? 6. What happens if the bank, while holding the funds, becomes insolvent?
Part II of this article describes the scope of the problem. Part III describes the current legal landscape. Part IV describes how parties actually are behaving, without regard to the legal landscape. Part V proposes a guide to sort out the mess
Reasonable Expectations in Socio-Cultural Context
Get PDFUnder the objective theory of contract, courts interpret the intent of the parties in adopting a particular contractual term according to the reasonable meaning of that term, or the meaning that a reasonable person would assign to that term. Courts adopt the objective theory to determine all aspects of the understanding between the parties-from the determination of contract formation, to an evaluation of the meaning of written or spoken terms, to an assessment of contract performance. In a series of articles, Professor Melvin Eisenberg explained how modern contract law evolved from the will theory to the classical model, and from the classical model to a more responsive and dynamic model. This Article argues in favor of such a progression. An objective theory of contract erroneously replaces the parties\u27 intent with a reasonableness standard. Reasonableness should be the product of weighing subjective intent against societal considerations, not a factor used to make such a determination. When one of the parties lacks the requisite subjective intent, a court may nevertheless enforce a contract when a failure to do so would cast doubt on the security of transactions and thus endanger our credit economy.
A dynamic approach better serves a dynamic society. In the modern global and technologically driven marketplace, the objective theory of contract incompletely captures-in fact, in some cases, even undermines-contract law\u27s objective of promoting individual autonomy. This Article further argues that in order for modern contract law to be truly dynamic, it must take into consideration the social and cultural backgrounds and social identities of the parties. This Article proceeds in four parts. Part I discusses the role that social identity and experience play in contract law and introduces the tension between sociocultural dissonance and an objective approach. Part II analyzes the difference that culture makes by examining a recent case involving two Korean-born businessmen. Part III analyzes the difference that gender makes by examining a case involving divorce and in vitro fertilization. This Article concludes that courts should consider contextual factors, including the background and identity of the parties, in order to better achieve the goal of contract law-to protect the reasonable expectations of the parties
Congress\u27s Primary Role in Determining What Full Faith and Credit Requires: An Additional Argument
Get PDFThe Constitutional Obligation to Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and Analogous Same-Sex Relationships: Prolegomenon to a Brief
Get PDFWhat if DOMA were Repealed? The Confused and Confusing Interstate Marriage Recognition Jurisprudence
Get PDFMain Ingredient in Marine Soup : Eliminating Plastic Bag Pollution Through Consumer Disincentive
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Access to Prescription Drugs: A Normative Economic Approach to Pharmacist Conscience Clause Legislation
Get PDFThe goals of this Article are two-fold: (1) to explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research; and (2) to demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate that pharmacist conscience clauses are a part of tort law and can be analyzed as such to determine whether social welfare is maximized.
Part II of this Article explains the role of pharmacists as the gatekeeper for drugs. In Part III, this Article describes conscience clause legislation designed to protect pharmacists who refuse to dispense prescriptions. Part IV considers whether the momentum of the state initiatives to allow pharmacists to refuse to dispense birth control could potentially be expanded to drugs discovered by controversial biomedical research. This Article describes how some of the conscience clause laws are so broadly worded that they could potentially be applied to other controversial areas, in particular, medications discovered through stem cell research. Part V provides that the application of principles from welfare economics may demonstrate that the protection from liability for pharmacists who refuse to fill a prescription due to the pharmacist’s personal or religious beliefs fails to maximize social welfare
Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content
Get PDFThe Principles of the Law of Software Contracts, or the Principles, seek to unify and clarify the law of software transactions. The drafters, however, excluded digital content from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as classification confusion. Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to resolve the conundrum of how to balance the proprietary rights and interests of licensor-owners and the rights and interests of licensee-consumers. This conundrum in turn has created problems of contractual form and user assent that arose out of software transactions but which have much more troubling applications in other contexts. With (and sometimes, even without) a click of a mouse, one can relinquish intellectual property, privacy,and expression rights.
This Essay proposes that the Principles should generally apply to digital content. The Principles are an impressive accomplishment and go a long way toward unifying and clarifying the law of software transactions. This Essay urges that they go even further