Amy B. Monahan and Daniel Schwarcz, Rules of Medical Necessity
, 107 Iowa L. Rev. ___ (forthcoming, 2022), available at SSRN
In a must-read article, Amy Monahan and Daniel Schwarcz have teamed up to undertake, in their own words, an “exhaustive review of caselaw and publicly filed health insurance policies,” and report back on what health insurers have been doing with their contract terms to try to control their claims spend-out. The results are riveting. Monahan & Schwarcz document a shift twenty years in the making. The nature of what they see is a switch from insurers defining the scope of coverage using the broad standard-like term of “medically necessity” within each benefit category, to the use of highly particularized rules embodied in clinical policies or guidelines that are directly or indirectly fixed by reference in the insurance policy terms.
Their piece is a reply of sorts in a conversation across the decades with another colossus of an article, Mark A. Hall & Gerard F. Anderson, Health Insurers’ Assessment of Medical Necessity, 140 U. Pa. L. Rev. 1637 (1992). Each article, Monahan & Schwarcz’s and Hall & Anderson’s, stands and grapples with the fundamental and enduring crosswinds of the health coverage conundrum and renders them into a coherent historical narrative of sweeping momentum. Continue reading "Medical Necessity, Then and Now"
Greer Donley, Early Abortion Exceptionalism
, 107 Cornell L. Rev
. __ (forthcoming 2021), available on SSRN
In Early Abortion Exceptionalism, forthcoming in the Cornell Law Review, Professor Greer Donley addresses the regulation of medication abortion by the U.S. Food and Drug Administration (FDA). Almost 40% of abortions are completed by taking two drugs at or before 10 weeks of gestation. Mifepristone is the first drug and, the second drug, misoprostol, is taken 24 to 48 hours after. The FDA issues a Risk Evaluation and Mitigation Strategy (REMS) for drugs it deems risky and in need of monitoring. Professor Donley focuses on two requirements this drug safety program imposes on providers seeking to prescribe mifepristone. For one, all providers must be certified to prescribe mifepristone, which requires submitting a form to the drug sponsor attesting that the provider can “assess the duration of pregnancy accurately,” “diagnose ectopic pregnancies,” and “provide surgical intervention” or “have made plans to provide such care through others.” (P. 11.) For another, the FDA requires that patients collect mifepristone at a healthcare facility – in-person at a hospital, clinic, or medical office. The effect of the FDA’s dispensation requirement has been to prohibit retail pharmacies and mail order prescription services from distributing mifepristone.
Professor Donley explains the complexities of the FDA regulation with clarity. But detailing the rules that govern medication abortion is not the point of her novel piece. Rather, Professor Donley assesses these restrictions in light of their ineffectiveness – medication abortion has been subject to strict controls even though it is comparatively safer than less regulated drugs. And she demonstrates why lifting these regulations would greatly expand access to early abortion. To make this case, her article offers three important insights. Continue reading "Can the FDA Save Early Abortion?"
- Marissa Jackson Sow, Protect and Serve, __ Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.
- Marissa Jackson Sow, Whiteness as Contract, 78 Wash. Lee L. Rev. __ (forthcoming, 2021), available at SSRN.
In the waning days of Trump’s presidency, the far Right put Critical Race Theory in its crosshairs. In a flurry of executive orders and guidance documents, Trump tried to paint CRT as the cause of racial unrest in our nation. This move, which has since set off campaigns in state legislatures to outright ban CRT in public schools, is unsurprising. Trump and large swaths of his followers are white supremacists full-stop. As such, they see CRT as a threat to their racist agenda.
CRT does not cause “racial unrest,” sow racial hatred, and it is not now and has never been routinely taught in K–12 schools. Those seeking to literally outlaw CRT are not in any honest sense concerned with our youths’ minds or souls. Instead, they fear CRT’s capacity to shed light on how racial division has been and continues to be used to maintain white power. CRT is dangerous because the movement in the academe and in the streets seeks to transform the relationship between race, racism, and power. If the stakes weren’t so high right now, we might chuckle at how ridiculously Trumpian the far Right’s strategy is here. What more Trump move could there be than to claim CRT, which helps us dissect and discuss racism in sophisticated ways, is a bigger threat to our nation than racism itself.
Thankfully, in these troubling times, scholars like Marissa Jackson Sow, continue to build out and expand CRT discourse in new and innovative ways. My focus here is on two of Sow’s recent articles, Whiteness as Contract and Protect and Serve. Continue reading "Trumpism and Critical Contract Theory"
Nicole Summers, Civil Probation
(Aug. 3, 2021), available at SSRN
Although 98% of cases in the United States are filed in state courts, it has become common to lament the lack of state-court-focused scholarship. Statements such as “staggeringly little legal scholarship focuses on state courts and judges” and “[w]e know astonishingly little about [state courts]” abound. A recent jot highlighted an article calling for more attention on “the actual,” not just “the ideal,” in procedural due process.
Luckily these tides are changing. Nicole Summers is an important member of an emerging vanguard here to help.
Summers studies eviction courts from the ground up. In her latest article, Civil Probation, she not only provides invaluable empirical data about the real workings of eviction courts, but she contextualizes her findings in theories that enhance our understanding of state civil courts generally and eviction courts in particular. (See also her earlier study of NYC housing court.) Continue reading "Circumventing Procedure in Eviction Court"
In criminology we are used to reading brief and ‘filtered versions’ of the history of the prison. Despite recent works that provide useful summaries (Rubin, 2019), our main knowledge about the emergence of the prison still comes foremost from the liberal or ‘Whig’ histories or from revisionist accounts (represented by Rothman, Foucault, and in a distant third place on the podium Spierenburg, Rusche and Kirkheimer, Ignatieff, and Melossi and Pavarini). The liberal version asserts that the emergence of the prison was the product of the ‘Enlightenment’ in the eighteenth century, and that this new form of punishment was a progressive triumph of humanitarian ideals which opposed corporal punishments and public executions. The revisionist version questions this benevolent explanation and, in the most influential Foucauldian version, declares that prison is also a cruel but ‘hidden’ punishment addressed to the soul (instead of the body), with the goal of disciplining and creating ‘docile bodies’, and destined not to punish less but better. Both the liberal and the revisionist versions have also been subject to criticism. Ariza and Tamayo’s paper El cuerpo de los condenados. Cárcel y Violencia en America Latina (The Body of the Convicted. Prisons and Violence in Latin America) provides a good example why both accounts need to be reconsidered.
As so often happens in criminology, and in general in the social sciences, our accounts derive mainly from the countries that produce them, the US, and the UK. In the social sciences, this generally means that even in Spain we explain the history of prison comparing ‘the system of Auburn and Philadelphia’. This is logical, to a certain extent, because the main scholarship has been developed there. However, this sometimes misleads us because the chronology of the birth of the prison, its principal ideas and influences, and also finally the main actors might obviously be more diverse in different countries. In her fascinating paper Mary Gibson (2011) summarizes the birth of the prison in three other continents to explain that not all countries followed the sources or tempos of the birth of the penitentiary. There are countries where the emergence of the prison ‘was introduced by a colonial government (Vietnam, Africa), by indigenous rulers under imperialist pressure from Western powers (China, Japan), or by postcolonial leaders (Peru).’ This literature produced from the margins allows us to capture new elements surrounding the origin of the prison institution, like racism, European imperialism, the brutal pre-modern conditions of the prison, and the substitution of less violent punishments existing in these societies before the prison, composing a more complete picture of the birth of the prison. Continue reading "Decolonizing Criminology and Its Relevance to Understand the Birth of the Prison in Latin America."
Robert Miller, Stock Market Value and Deal Value in Appraisal Proceedings
, 96 Notre Dame L. Rev.
1403 (2021), available at SSRN.
Delaware’s law of appraisal rights has been in an uproar since hedge fund arbitrageurs showed up in the Chancery Court fifteen or so years ago as appraisal petitioners. The shock led to minor changes in the statute and extensive changes in the caselaw. Responsive commentaries continue to appear with regularity. Professor Robert Miller takes a fresh look at the situation in Stock Market Value and Deal Value in Appraisal Proceedings. His paper is well worth a look.
I need to back up those fifteen years in order to frame the paper. Appraisal arbitrage really changed the game. All of a sudden a notoriously plaintiff-unfriendly legal remedy became a play space for Wall Street smart money looking for Alpha. The arbs worked the system by cooking up persuasive discounted cash flow (DCF) valuations that came in above the merger price. Shareholder advocates saw much to like in this development. The Delaware bar and judiciary, along with most of the rest of the establishment, saw things differently. The bar pushed through some minor revisions of the statute through the legislature, but those were not enough to stop the show. Continue reading "Reconstructing the Meaning of “Fair Value” in the Wake of Appraisal Arbitrage"
Omer Pelled & Ohad Somech, The Value of Accuracy in Contract Interpretation
(Aug. 5, 2021), available at SSRN
In the past twenty years or so, the new formalism, led mostly by legal economists, has been quite influential in contract theory. Focusing on commercial transactions between sophisticated firms, leading scholars have questioned the courts’ competence to accurately determine the parties’ intentions and called for a textualist approach to contract interpretation (see, e.g., Schwartz & Scott 2000; 2003).
Two common responses to the new formalism are to deny that economic efficiency is the only value underlying contract interpretation, even in commercial contracts, and to shift attention from negotiated, commercial transactions to standard-form and consumer contracts. In The Value of Accuracy in Contract Interpretation, Omer Pelled and Ohad Somech take a different route. They convincingly criticize one of Schwartz & Scott’s key arguments on the latters’ own terms, thereby casting doubt on the accuracy of mainstream economic analysis of contract interpretation even in bespoke commercial transactions between sophisticated parties. Continue reading "The Accuracy of Economic Analysis of Contract Interpretation"
Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem
, 121 Colum. L. Rev.
2049 (2021), available at SSRN
The “law in books” is often not the same thing as the “law in action.” And in administrative law, the reason for that disjoint is often because some agency has decided to interpret, apply, or enforce the written law in a way that changes its on-the-ground meaning. In immigration law, the “law in books”—the Immigration and Nationality Act—takes a hard line on violators: it “specifies deportation as the sanction for nearly all transgressions of immigration law, no matter how minor, and regardless of the personal circumstances of the immigrant” (P. 3.) But when we look at how that law is applied, a different picture comes into view—“a system of shadow sanctions” (P. 4) that takes the place of deportation for vast numbers of noncitizens.
Shalini Bhargava Ray maps and critiques this “shadow” world of immigration law in an absorbing recent article, Immigration Law’s Arbitrariness Problem. In the article, Professor Ray sets out how the immigration bureaucracy stops, or indefinitely postpones, the issuance and execution of huge numbers of removal orders through the use of various administrative devices, including deferred action, administrative closure, and orders of supervision (P. 4.) She then explains the problematic feature of these discretionary tools as a rule-of-law matter: though these shadow sanctions mitigate the harshness of deportation, they are still doled out in an entirely opaque and often arbitrary way. Continue reading "Immigration Law’s “Shadow Dockets”"
Gali Racabi, Abolish the Employer Prerogative, Unleash Work Law
, 43 Berkley J. Emp. & Lab. L.
__ (forthcoming), available at SSRN
What is an “employer,” and what can it do? And what role does law play in answering those questions? In this understated yet radical new piece—Abolish the Employer Prerogative, Unleash Work Law—Gali Racabi analyzes the law’s basic concepts for governing the workplace. Digging deep into the substratum of the law’s framework, he excavates the idea of the “employer prerogative”: namely, that the employer’s designated representatives have “the legal authority to make unilateral decisions in the workplace.” (P. 4.) Racabi’s simple proposal is to end this prerogative and consider alternative ways of allocating workplace power. His concept is both simple and staggering: a complete reorganization of the governance of firms within our economy.
Abolishing the Employer’s Prerogative is centered on a notion that is so much a part of our common cultural and economic understandings that it may even take a moment to realize what it is. Our economy delegates control over economic activity and decision-making to individual firms. Firms are a little hard to define, as they are economic (and not scientific) phenomena, but essentially they are the businesses that we work for, buy from, and contract with when engaging in our economic lives. We rely on firms to organize our behavior such that we can carry on extensive, long-lasting economic engagements within the rubric of a firm, rather than simply a market. The theory of the firm has proven a useful yet frustrating subfield of economics, as economic methodologies have not always proven suitable for the subtle, complex intricacies of interpersonal cooperation and competition that are contained within the firm. Continue reading "What If I Told You That Employer Power Is a Legal Construct"
In the Estates textbook I use, most of the will execution cases involve testators whose clear intent is unrealized because they bungled strict execution requirements. The Uniform Probate Code and the Restatement (Third) of Property: Wills and Other Donative Transfers—mainstays in any Estates class—are drafted to minimize the possibility of formal requirements interfering with testator intent. Reis Kress Weisbord and David Horton’s Inheritance Forgery is a counter-narrative that demonstrates how forgery remains a real and substantial risk of which the law must take account.
Weisbord and Horton argue that “counterfeit donative instruments are a serious problem.” (P. 855.) They focus on three donative transfers: wills, deeds, and life insurance beneficiary designations. To explore the prevalence of forged wills, the authors conduct empirical research in Alameda County, California. In a dataset consisting of every matter on the probate court’s docket in a one-year period, ten percent of will contests involved a forgery claim. (P. 876.) To document the forgery risk with deeds, the authors examine reported opinions since 2000, grand jury reports, and journalistic accounts of cases that were never litigated. As Weisbord and Horton explain, “these cases and stories share a common thread: deed forgers tend to prey on property that is owned by a decedent’s estate.” (P. 883.) To demonstrate that courts “routinely preside over claims that a life insurance form was falsified or fabricated,” the authors study reported opinions since 2000. (P. 889.) This empirical works reveals the extent to which forgery threatens the integrity of donative transfers. Continue reading "Don’t Forget About the Fakes"