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Equality and Sufficiency in Health Care Reform
Get PDFMost Americans believe that health care is a right, not a privilege. Yet debates over health care reform frequently fail to distinguish between two distinct conceptions of the right to health care: one which focuses on sufficient access to health care-what I refer to as the Right to a Decent Minimum-and a second which focuses on equality in access to health care what I refer to as the Right to Equal Access. These two conceptions of the right to health care in turn support two distinct categories of proposals for expanding health insurance coverage. The Right to Equal Access justifies a more radical set of reforms, such as Medicare for All, whereas the Right to a Decent Minimum justifies a more incremental approach to health care reform, such as by building on the Patient Protection and Affordable Care Act. Comparing these two conceptions of the right to health care to Medicare for All and the incremental reforms clarifies what it as stake in the debate over health care reform: not just concerns about political feasibility, but also different moral or political values. At the same time, it reveals that there are some surprising areas of convergence between these two conceptions of the right to health care, and accordingly, that there is room for greater convergence between these two types of reform proposals
Solving the Housing Crisis Half-a-House at a Time: Incremental Housing as a Means to Fulfilling the Human Right to Housing
Get PDFThis student note will attempt to answer two broad questions: 1) Does Chile’s incremental housing model fulfill an international human right to housing?; and 2) Can incremental housing be implemented in a U.S. jurisdiction? Incremental housing is a unique social housing model developed by Chilean architect Alejandro Aravena, which consists of building just half-a-house, thus allowing the recipients to maximize limited housing subsidies through participatory improvements to ultimately gain transferable wealth through credit. While incremental housing does not offer a panacea in application in Chile, the model represents an important step toward realizing a right to housing in a deeply unequal environment. Incremental housing is not only implementable in a U.S. jurisdiction, but also offers an innovative model to make social housing viable
On Solid Ground: How \u3cem\u3eSterling\u3c/em\u3e Strengthened Airspace Ownership Rights in Florida
Get PDFNo other form of property ownership is as synonymous with Florida as the condominium. While ownership of airspace was possible under common law, modern condominiums are more accurately described as creatures of statute. Although the Florida Condominium Act (FCA) expressly provides for fee simple airspace ownership of condominium property, it had been unclear if the Act could provide for fee simple airspace ownership of non–condominium property. Sterling Breeze v. New Sterling Resorts cleared up that ambiguity and found that the FCA can provide for fee simple ownership of non–condominium airspace. First, this note will review the development of airspace ownership rights as they relate to condominiums within both common law and statutory regimes. Next, this note will explain key provisions of the FCA as well as Florida case law relevant to airspace ownership. This note will then discuss Sterling Breeze v. New Sterling Resorts which tested whether, under the Florida Condominium Act, non–condominium airspace can be owned in fee simple if the non–condominium airspace was described in a condominium declaration. Adopting a contract–based approach that looks to condominium declarations governed by the FCA, the Sterling Breeze court affirmed that non–condominium airspace can be owned in fee simple if that airspace was described in the declaration creating the condominium. This note will then consider potential benefits of the contract–based approach to airspace ownership adopted in Sterling Breeze and briefly discuss the urban planning and land–use benefits that flow from including non–condominium airspace within the FCA’s scope. This note concludes with a consideration of how Florida common law may also provide for fee simple airspace ownership outside of the Florida Condominium Act
Team Production Revisited
Get PDFThis Article reconsiders Margaret Blair and Lynn Stout\u27s team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by a description of principal-agent relationships among shareholders and managers. This Article shows that the model retains descriptive robustness, despite the substantial accretion of shareholder power during the two decades since its appearance. The Article also shows that the model taught three groundbreaking lessons to corporate legal theory. First, nothing binds microeconomic analysis together with a theory of the firm rooted in shareholder primacy. Second, microeconomics, with its emphases on efficiency and maximization, can be deployed in the service of an allocatively sensitive description of corporate governance, providing a more capacious methodological tent than anyone in corporate law understood prior to Blair and Stout\u27s intervention. Third, it is not only possible but arguably necessary to take corporate law seriously when articulating a microeconomic theory of corporate production. To the extent an economic model\u27s description of the appropriate legal framework differs materially from the inherited legal framework, there is a possible, even a probable, infirmity in the model
The Paris Agreement Compliance Mechanism: Beyond COP 26
Get PDFWithout an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties. The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation. Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions. The main mandatory elements of the agreement are reporting requirements. The success of the agreement turns on whether countries comply with these requirements. Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement. Yet, as with the rest of the Paris Agreement, Article 15 does not have teeth and relies on the good behavior of the countries of the world. This brief contribution describes the mechanics of Article 15 while also highlighting concerns and issues at stake. This background should be helpful in responding to COP 26 in Glasgow and beyond
Circumscribing the Right to Bear Arms: the Second Amendment, Gun Violence, and Gun Control in California and Mississippi
Get PDFThe United States occupies a unique position amongst countries around the world when it comes to gun rights. While the United States is one of three countries that provides its people the constitutional right to bear arms, it is the only country that has more guns per capita than residents. Further, because of the saturation of guns in the United States, the country significantly leads in the amount of gun-related homicides than any other developed nation. Nevertheless, state legislatures have circumscribed gun rights within the bounds of the Second Amendment to the United States Constitution to curb gun violence. This note weighs California and Mississippi’s gun control laws against rates of gun violence in the respective states. Using critical race theory, the paper concludes that while there is a direct correlation between stricter gun control laws and lower gun violence, gun violence disproportionately affects Black Americans. These findings are grounded in social, historical, political, and constitutional analyse
Analysis Of Section 230 Under a Theory of Premises Liability: A Focus on \u3cem\u3eHerrick v.Grindr\u3c/em\u3e and \u3cem\u3eDaniel v. Armslist\u3c/em\u3e
Get PDFSection 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to hold online service providers liable for the foreseeable consequences of harmful content on their platforms. Under a theory of premises liability, online service providers can be held liable for the foreseeable consequences of dangerous, harmful, or illegal content made by third parties and allowed on their platforms. In other words, like physical landowners or business operators, online service providers should have a duty to maintain their websites in a reasonably safe condition and to protect against, and remedy, harmful third-party content by making “good faith” efforts to moderate content. Generally, the owners of physical locations open to the public have a duty to make reasonable efforts to protect people against foreseeable harm caused by the acts of third parties that they know, or should know about, and that are likely to occur without such efforts. That same duty should be extended to the online context. By extending a duty similar to that required in the theory of premises liability, online platforms will be incentivized to implement measures to prevent future da present once having been informed of such. Only when online intermediaries make reasonable, “good faith” moderation efforts, should they be given immunity under Section 230. Thus, applying the theory of premises liability to the online context would serve the purpose of Section 230 better than the status quo. Specifically, this note applies the theory of online premises liability by applying it to two cases that were submitted to the United States Supreme Court for review this term – Herrick v. Grindr (review denied on October 7, 2019) and Daniel v. Armslist (review denied on November 25, 2019). This analysis will demonstrate how the imposition of a duty similar to that of premises liability will incentivize online operators to implement measures to prevent against foreseeable harm
Blackwater Rising: The Legal Issues Raised by the Unprecedented Privatization of U.S. Military Functions
Get PDFThe Army has used civilian contractors to provide supplies and services to its forces in the field since the Revolutionary War. These early contractors fed the cavalry’s horses and transported supplies. Over the years, the role of the civilian contractor has dramatically evolved. Following the Vietnam War and the end of the draft, there has been an ever-increasing privatization of functions previously performed by the military.The wars in Iraq and Afghanistan, which began in response to the September 11 attacks and have only recently started to come to a formal end, have significantly accelerated this process. As a result, by 2010 the number of contractors in these battle zones began to exceed the number of U.S. troops.This massive privatization of functions previously carried out by the military has also resulted in an actual re-definition of their roles. Private contractors now perform many jobs that were formerly the responsibility of uniformed personnel, including those in forward battlefield positions as well as in active combat. This significant change in role has been accompanied by a corresponding rise in deaths and injuries for contractor employees, so that they now surpass those sustained by military personnel.The redefinition of the civilians’ role in battle has raised many new legal issues, for which there was very limited prior relevant precedent. In the civil context, these issues include the applicability of the political question doctrine to tort cases arising on the battlefield; contractor immunity under the Feres doctrine, the government contractor defense and the so-called combatant activities exception; the application of the state secrets doctrine and the enforceability of arbitration clauses in employment contracts. Legal questions also arise in the criminal sphere, such as the liability of civilian employees for breaches of local laws as well as the Military Code of Justice and the extra-territorial jurisdiction of U.S. courts to hear cases arising from alleged criminal acts occurring in overseas war zones.As a result, the federal courts have been left to struggle with many new and complex questions raised by these changed civilian roles, relationships and functions without any significant framework for guidance. Consequently, some cases have dragged on for over a decade, while others have reached diametrically opposite results, which are often not logically capable of reconciliation.If there was ever an area of overwhelmingly unique federal interest, it is the subject of military contractors’ legal liabilities and responsibilities in war zones. The present patchwork quilt of remedies is neither adequate nor fair and is totally lacking in the predictability, which the law should provide to its citizens. Too often the families of civilian men and women, who died while serving in the roles traditionally performed by soldiers in war time, have been denied any effective remedy for their loved one’s sacrifices