Charting a New Path for Health Care Reform

Lindsay F. Wiley, Elizabeth Y. McCuskey, Matthew B. Lawrence, and Erin C. Fuse Brown, Health Reform Reconstruction, __ U.C. Davis L. Rev. __ (forthcoming, 2022), available at SSRN.

Since the 1960s, debates over health reform in the United States have focused on expanding access to health care, improving its quality, and lowering its costs. In their forthcoming article, Health Reform Reconstruction, Professors Lindsay Wiley, Elizabeth McCuskey, Matthew Lawrence, and Erin Fuse Brown argue that this so-called “iron triangle” framework has led to an unjust health care system by marginalizing equity, solidarity, and public health concerns. Building on their prior work, the authors call for a new set of principles to guide health care reform that centers around health justice. The Article also identifies legally and logistically entrenched fixtures of the U.S. health system and shows how they have structurally constrained health reform and undermined social justice goals. This provocative Article is a must-read for those interested in health reform, and the authors’ reframing of the issues pushes stakeholders to ask whether reform proposals will reinforce these problematic fixtures or dismantle them (albeit partially), thereby moving us closer to a more just health care system.

The Article is organized around four lessons that the authors pull from the U.S. health care system’s deficient and inequitable response to the COVID-19 pandemic. Part I presents the first lesson ─ “that health care reform requires new principles rooted in solidarity, equity, and justice.” (P. 5.) The authors argue that the pandemic has revealed weaknesses in our health care system that have increased COVID-19’s public health and economic harms, such as failing to fairly allocate, adequately supply, and constrain prices for COVID testing, treatment, and vaccines. The pandemic’s disproportionate impact on low-income, Black and Brown communities also has made highly visible the health care system’s failure to reduce long-standing disparities in health. In addition, the pandemic highlighted our interdependence across racial and socio-economic lines. The authors argue that evaluations of future health reforms therefore should be guided by three core criteria ─ anti-subordination, equitable distribution, and community empowerment ─ criteria often overlooked or marginalized by the iron triangle framework. Specifically, they believe we should ask whether reforms (1) dismantle or reinforce structural racism, economic injustice, and other forces of social subordination; (2) ensure the just distribution of the burdens and benefits of public investments in health care and public health; and (3) allow for decision-making processes that give recognition to and empower subordinated groups that too often are excluded from collective self-determination. Continue reading "Charting a New Path for Health Care Reform"

Nonmarital Equality in a New Light

Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, __ Colum. J. Gender & L. __ (forthcoming, 2022), available at SSRN.

The classic story of marriage equality figures same-sex couples’ various maneuvers to enter the legal institution of marriage through the courts, claiming the right to be treated the same as opposite-sex couples and repudiating the counter-claim that same-sex couples ought to be treated differently. Its narratives are dominated by the first part of Aristotle’s equality axiom “likes alike,” yet haunted by the second part of the axiom: “unlikes unlike.” Its counter-stories embrace diverse demands for nonmarriage equality, arguing for alternative forms and mechanisms of relationship recognition based on the objection to the supremacy of marriage and the Aristotelian axiom.

A UK couple, Steinfeld and Jeidan, and an Austrian couple, Ratzenböck and Seydl, went to courts seeking legal recognition of their relationships in forms other than marriage. They are opposite-sex couples seeking to register for same-sex civil partnerships. Their court challenges reverse the equation in the classic marriage equality model. Here are opposite-sex couples demanding to be treated like same-sex couples, not the other way around. Their stories became part of the emerging case law in Europe that is the subject of Nausica Palazzo’s article Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships. Continue reading "Nonmarital Equality in a New Light"

Against Functional Approaches

Katharine K. Baker, Equality and Family Opportunity, __ Univ. of Penn. J. of Const. Law __ (forthcoming), available at SSRN.

As Katharine Baker recounts in her excellent article, Equality and Family Autonomy, functional analysis was once part of a positive progressive narrative within family law: it was through a functional analysis that scholars and courts (and some legislatures) found a way to give legal recognition – and legal protection – to individuals and families whom legal formalities would not protect. As Baker writes: “Contemporary family law scholarship … often assume[s] that a functional approach to family law … is the best way to secure equal treatment for people who live in relationships that have not been recognize legally as familial.” (P. 2.)

However, functional approaches always had their disadvantages, and now that same-sex partners and parents can generally protect their interests through marriage or adoption after Obergefell v. Hodges,1 Baker shows how those disadvantages – “pluralistic, self-determination and privacy values that can be lost” (p. 4) – often outweigh the benefits for the legal treatment of parenthood. Functional analyses require state evaluation of the family, which is too often “invasive, ineffective, and . . . damaging” (p. 4). Baker argues that “[a]s family forms grow more diverse, judges become ever less qualified and less capable of assessing what constitutes appropriate family behavior.”2 (P. 5.) Continue reading "Against Functional Approaches"

The Promise of Radical Crime Policy

Jessica Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120 (2021).

To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.

In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To this end, Eaglin delivers a four-part typology of recent initiatives that plausibly fall under the Defund mantle: Police Abolition, Police Recalibration, Police Oversight, and Fiscal Constraints. Continue reading "The Promise of Radical Crime Policy"

The Roberts Court’s Legacy in Class Action Jurisprudence

Richard D. Freer, The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done, 51 Stetson L. Rev. ___ (forthcoming 2022), available on SSRN.

The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice.

Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade. He categorizes decisions as ‘revolutionary’, ‘evolutionary’ or ‘work to be done’. By analyzing the corpus of cases in this way, Freer provides a compelling account of the Court’s engagement with key class action issues. Continue reading "The Roberts Court’s Legacy in Class Action Jurisprudence"

The Elephant in the Room

US Treasury securities are to financial markets what carbon is to life on Earth—ubiquitous, foundational, indispensable, and acting very scary of late. “The Treasury market is the biggest, deepest and most important bond market in the world and acts as a benchmark that is used to price trillions of dollars of assets globally,” says the Financial Times, an authority on these matters—yet you would be hard-pressed to find half a dozen law review articles on the subject. A pair of papers by Yesha Yadav, most recently with (her dad) Pradeep K. Yadav, deserves much praise for starting to fill the gap. The papers properly frame the subject at the intersection of law, finance, and economics, while public and private sector “grandees” and “heavyweights” sound financial stability alarms and try to patch the fraying market architecture.

We have it on good authority that carbon is a relatively recent arrival in our universe; more so the US Treasuries. As recently as a century ago, the US Treasury Department was hawking versions of bespoke project bonds and struggling to emerge from Britain’s shadow in the financial markets. A succession of design choices in response to 20th century upheavals helped transform the US Treasury market from a fringe contender into the undisputed center of global financial gravity. Its centrality was on full display in October 2008 when frightened humans gorged on sticky pudding while the markets supplying their carbs scrambled for their own comfort food, the US Treasury securities. Continue reading "The Elephant in the Room"

Soccer Balls Stitched by Tiny Fingers

David V. Snyder, Susan Maslow, and Sarah Dadush, Balancing Buyer and Supplier Responsibilities: Model Contract Clauses to Protect Workers in International Supply Chains, Version 2.0, 77 Bus. Law. (ABA) ___ (Winter 2021-2022), available at SSRN.

More than 40 million people in the world today are held in some form of slavery. Slavery today takes many forms, ranging from the abhorrently obvious open slave markets in Libya reported in 2017 to bonded labor, prison labor, sex trafficking, child soldiers, debt slavery, and many other permutations of one of the oldest human institutions. Slavery is so endemic and difficult to police that the continuing human tragedy seems intractable, especially when viewed from the limited toolset available to governments seeking to prevent the practice.

The Model Contract Clauses 2.0 (MCCs 2.0) presented in this report represent a movement away from traditional command and control legislative and regulatory enforcement efforts to provide private commercial actors with a set of modular, scalable, flexible, and implementable mechanisms for addressing slavery in international supply chains. As Snyder, Maslow, and Dadush note: “This project was born of challenge, frustration, and hope. There is little doubt that workers in international supply chains are being abused, in the most horrifying ways, even as they work to produce the staples of our everyday lives and indeed support much of our economy.” (P. 2.) Continue reading "Soccer Balls Stitched by Tiny Fingers"

Elevating Marginalized Voices in Agency Decisionmaking

Brian D. Feinstein, Identity-Conscious Administrative Law: Lessons from Financial Regulators, __ George Washington L. Rev. __ (forthcoming), available at SSRN.

Literature exploring mechanisms for democratic accountability of the administrative state is so rich that it sometimes feels like there is no novel take left. But Professor Brian Feinstein, in his forthcoming article Identity-Conscious Administrative Law, shines a spotlight on an unexamined angle: how and when agency procedures use identity requirements to ensure otherwise-marginalized perspectives are heard.

The sets of administrative structures Professor Feinstein considers may seem specific and narrow, but as he compellingly demonstrates, the possible implications of expanding these approaches are vast and important. Indeed, what makes this article so convincing is its identification of extant and accepted tools to address deep and structural problems of inequality and injustice in administrative decisionmaking. If taken to a larger scale, these tools could be a central part of reclaiming democratic accountability over the administrative state. Continue reading "Elevating Marginalized Voices in Agency Decisionmaking"

Changing the Legal Baseline for Effecting Mass Economic Dismissals

Rachel Arnow-Richman, Temporary Termination: A Layoff Law Blueprint for the COVID Era, 64 Wash. U. J. L. & Pol’y 1 (2021).

In her article, Temporary Termination: A Layoff Law Blueprint for the COVID Era, Professor Arnow-Richman argues “that the exigencies of the pandemic bring to light a long-neglected flaw in the pre-existing regulatory framework: there is no reliable just-in-time source of continued pay, nor any form of separation rights, for laid-off workers.” (P. 20.) The article is divided into three main sections. First, it describes the dearth of protections for laid-off workers. Second, it explains the legal significance this gap holds in protecting laid-off workers. Third, it “sketches a new law of layoffs focused on income continuity and job attachment.” (P. 4.)

In Part I (Pp. 5–12), The Economic Termination Gap, Professor Arnow-Richman explains that there are few federal (or state) protections for workers whose employment is terminated, permanently or temporarily, for economic reasons. The one federal right that Congress has created is a limited right to advance notice of job termination under the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. §§ 2101-2109. The WARN Act requires certain large employers to provide 60-days’ advance notice of job loss resulting from a plant closing or mass layoff, as those terms are statutorily defined. Continue reading "Changing the Legal Baseline for Effecting Mass Economic Dismissals"

Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law

David A. Dana, Public Nuisance Law: When Politics Fail (May 26, 2021), available at SSRN.

Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.

David Dana’s article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana’s argument should, in theory, make sense of November’s mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address. Continue reading "Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law"

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