Category: Administrative Law

Implementing Health Reform

The Commonwealth Fund has recently reported on how states are lagging in implementing consumer protection aspects of the ACA.  In case you are looking for a comprehensive overview of the options open to a state as it implements the MLR provisisons of the ACA, check out my colleague Tara Adams Ragone’s policy brief The Affordable Care Act and Medical Loss Ratios: Federal and State Methodologies.  Though the piece focuses on New Jersey, its structure suggests the issues that will come up for many other states:

As part of sweeping health care reform in 2010, Congress established MLR requirements for health insurance issuers offering coverage in the group and individual health insurance markets, including grandfathered but not self-insured plans, hoping to increase the value consumers receive for their premiums and to improve transparency. Medical loss ratio refers to a measure of the percentage of premium dollars that a health insurance company spends on health care as distinguished from administrative expenses and profit, including advertising, marketing, overhead, salaries, and bonuses. Prior to the ACA, some states but not the Federal government regulated loss ratios. The new Federal MLR law, which went into effect on January 1, 2011, for the first time established a national MLR standard, which varies from existing state MLR requirements in important ways.

This Policy Brief analyzes the new Federal MLR requirements and how they intersect with and affect New Jersey law and its insurance markets. After providing background on medical loss ratios and highlighting the major similarities and differences between the existing Federal and New Jersey MLR regulatory schemes, this Brief examines several requirements and policy options that New Jersey must consider as it implements the Federal requirements. This Brief also includes appendices that provide more extensive details regarding the components of the Federal MLR requirements, New Jersey’s MLR legal structure, and research regarding experiences with loss ratios nationally and in New Jersey, pre- and post-the ACA.

My former student Ina Ilin-Schneider has also posted on the MLR, after authoring a very interesting paper on the state waivers granted (and denied) by HHS.

Finally, a quick note to recommend Ann Marie Marciarille’s several recent posts at PrawfsBlawg on ACA implementation and health policy generally.  It’s hard to write about these topics gracefully and for a general audience, while conveying the expertise of a scholar.  I think of her posts as real models on both counts.

X-Posted: Health Law Profs.

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Moral Values and the Curriculum

What great fun to read all these posts!

There are three separate threads on the posts that I want to respond to: the impact of Robin’s analysis and exhortations on what our law school curriculum might look like; the three Rs: Robin, Robert (Cover) and Religion; and the intersection between moral values, relationships and marriage.

So, to the first –curriculum.

Among the changes I hope will follow from Robin’s work are significant changes to the law school curriculum. As Rebecca Lee notes:

As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy. To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis. Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom. As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship

I completely agree.  Moreover, I think it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills.  Robin has noted in this book the importance of liberal progressives being able to deploy normative arguments that rely on a thick understanding of justice and moral goods and she will make an even more extensive argument on the importance of teaching students about justice in her forthcoming book about law schools.  To me, giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that Robin is suggesting.

But I also can’t imagine having students learn about, and critique, theories of justice without also having a deep understanding of how our political system – which ultimately creates the body of laws that reflect our vision of justice — really, actually, and honestly works.

The lack of understanding on the part of the general public regarding the role and authority of the executive branch and the legislative branch sometimes takes my breath away.  By virtue of their profession, lawyers should be leaders in educating people about how our lawmaking system actually works and in helping people engage in citizen democracy.  But we don’t give our law students a comprehensive and rich understanding of lawmaking – the role of legislatures and agencies (as well as courts, which we cover quite well) in the making of law.

The good news is that this is beginning to change. Many schools are expanding their vision of what “teaching law” includes – which often extends to teaching students about advocacy in the political arena that makes law in the first place.

For this reason, I believe a forthcoming article on how law school clinics can lobby, co-authored by Professors Kevin Barry and Marcy Karin who head clinics that engage in both individual client work and policy work, is going to become a popular reading item. As Barry and Karin note in the beginning of their article:

In short, policy advocacy adds value for students, the law school, and the community. With respect to students, this type of clinical experience expands students’ toolkit of transferable legal skills and exposes them to the range of ways in which the law may offer solutions to a particular client or client base. It also responds to the growing student demand for policy advocacy opportunities and enables students to aspire to the highest ethical standards as set forth in the Preamble to the ABA Model Rules of Professional Conduct. These rules state that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” MODEL RULES OF PROF’L CONDUCT Preamble (2012) (emphasis added).

And finally, Jill Hasday’s post brought home to me how important students’ policy advocacy work can be – and what has been missing so far in those efforts, in terms of curriculum.  Jill tells us:

Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence.

Well, the only reason there is not a mandatory family cap in ALL 50 states in this country is that, back in 1996, students in the Georgetown Federal Legislation Clinic who were working on behalf of their client, Catholic Charities USA, helped draft legal analyses and talking points against the family cap. The original welfare reform bill had required every state to have a mandatory family cap in its TANF program.  Catholic Charities (the client) took the lead in organizing a coalition against that provision.  Politics was such that the best Catholic Charities could get was a provision that permitted states to impose a family cap if they affirmatively chose to do so.  The students who worked with Catholic Charities over the course of that year learned critical legal skills by doing that work and (from my perspective) helped advance social justice by eliminating the nationwide mandatory family cap.

But here’s my final point – the work of Georgetown’s Federal Legislation clinic on welfare reform (and on many other legislative and administrative issues over the past two decades) has enabled students to learn about the political system and the making of law, and to develop important legal skills.  But there is SO much more about justice and values and normative goods (and arguments about normative goods) that could have been taught to the students if they had had available to them – as Robin calls for — a richer progressive natural law jurisprudence.  Think about what more the students could have learned if part of the law school curriculum would have been to engage them in a substantive goods conversation about the family cap – at the same time that they were working on the issue in a practical way.  (I can tell you — I did not engage the students in that conversation.  But I would do so now, as a complement to their advocacy work.)

So to end with Robin’s words:

As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise [state neutrality toward conceptions of the good] is that partly as a consequence, we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them. So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.

Amen. (Designed as a segue to my next post: “The Three Rs: Robin, Robert (Cover) and Religion.”)

 

 

 

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The Federal Reserve’s Marbury

I wanted to add one more post about my research on central bank independence before I start writing up the paper.  Everyone know that Marbury v. Madison is the cornerstone of judicial review (though you can certainly identify other important precedents in this respect).  What is the equivalent for the Federal Reserve?

The answer, though it sounds obscure, is a 1951 Accord (usually called “The Accord”) between the Treasury and the Fed.  At the start of World War II, the Fed entered into an agreement with the Treasury to finance our war debt by buying bonds and pegging interest rates at a very low level.  When the war ended, the Treasury refused to release the Fed from this deal and continued to insist an on expansionary monetary policy. President Truman took a dim view of central bank independence, with the low point coming during the Korean War when the FOMC held one of its meetings in Truman’s office with Truman present.  (Try to imagine a Supreme Court conference under similar conditions.)  Not long after that, though, criticism of the Treasury’s position increased in Congress and on Wall Street, which resulted in “The Accord,” where the Fed was essentially released from the Treasury’s grip and the principle of independence established.

Now on to other subjects . . .

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“Would Winston Smith and Josef K. please return to the gate? Your flight is ready to depart.”

Yesterday the United States Court of Appeals for the Ninth Circuit released its opinion in Latif v. Holder.  Ayman Latif is a U.S. Citizen and disabled Marine Corps veteran who lives in Egypt.  Airport officials in Cairo prevented him from boarding a plane to return to the United States, where he needed to attend a scheduled disability evaluation.  Latif sought help from the U.S. Embassy, but he alleges that months later, after lengthy FBI interviews and polygraph tests, American officials told him that he could fly to the United States only as a “one-time thing,” without any guarantee that he would be allowed to return to his wife and daughters in Egypt.  He refused the offer and his benefits as a disabled veteran were cut.

Latif filed suit, along with other citizens and lawful permanent residents in the U.S. and abroad who alleged similar treatment.  They all claimed that they were prevented from traveling because the United States Government  placed them on its No Fly List.  This unanimous court of appeals decision opens a door to judicial review that, until yesterday, the Government had succeeded in keeping tightly shut.  After the break, I’ll provide a brief review of the current system and then analyze how the Ninth Circuit’s opinion presents a substantial opportunity for change.

(Full Disclosure:  Readers might recall me as a past guest at Concurring Opinions.  My bio is here and my interest in this case comes from my work on a book to be published in December by the University of Michigan Press called Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.) Read More

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Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?

(Disclaimer — I decided soon after law school not to focus most of my efforts on the Supreme Court or con law.  There are brilliant people who work on it all the time, and I don’t.  But I am a law prof who can’t help noticing some things …)

Last week, liberals went through the near-death experience for the Affordable Care Act — far, far, far closer than the confident predictions of most liberals when the law was passed.

This week, I had the chance to speak in depth with an experienced liberal lawyer about the Next Big Constitutional Thing — the Catholic hospital challenges to the ACA’s requirements that contraception and other coverage must be included for the employees of hospitals, universities, and other Catholic institutions that are not themselves part of the Church.

The lawyer confidently predicted that the Catholic hospitals would lose.  After all, everyone knows the peyote case — Employment Division v. Smith, where a neutral state anti-drug law trumped a Free Exercise of religion argument that would have allowed an adherent to use peyote.  The lawyer said there was no precedent for the Catholic hospitals to win, such a holding would disrupt innumerable neutral state laws, and even Justice Scalia would be bound by his prior writings to find against the Catholic hospitals.

My reaction — “here we go again.”  It felt just like the over-confident predictions that the individual mandate inevitably would be upheld.  And my friend sounded like other liberals who have scoffed at the claims of the Catholic hospitals.

My instinct — as a realist prediction of the outcome, and not as a statement of my policy choice — is that the Catholic hospitals very possibly will win if the case goes to final judgment in the courts.

First, I don’t think Justice Scalia will find that a law prohibiting peyote (a “good” and long-standing law) is remotely similar to a law requiring the Catholic Church, for the first time in history, to buy an insurance package that pays for contraceptives.  He’ll think that the latter is a “bad” law.

Second, the Catholic Church has tens of millions of members in the U.S., and is not the splinter group at issue in the earlier case.  In a realist analysis, the views of a tiny church are not the same as those of the largest organized Church in western history.

Third, the views of the Church on contraception are sincere, widely publicized, and long-standing.  Although many individual Catholics don’t follow the doctrine on this issue, the institution of the Church is firmly on record on the issue.  This is not a pretext to take mind-altering drugs; it is a major doctrinal tenet.

Fourth, many Catholic hospitals are deeply religious institutions.  They often have a cross and a Bible in each room.  Many nuns and priests work in the hospitals.  Providing health care is deeply rooted in the mission of the Church, and has been for many years.  In other words, this is not the equivalent of “unrelated business income.”  Instead, religion and healing of the sick are thoroughly intertwined.

Fifth, and my apologies for mentioning it, six of the nine Supreme Court justices are Catholic.  I am not saying that a Catholic judge will hold for the Church any more than a white judge holds for whites and a black judge holds for blacks.  However, the justices will have deep personal knowledge of the healing tradition of Catholic hospitals.  They will read the briefs in the context of their personal knowledge.  I don’t think they will lightly assume that they are bound by cases with facts that seem to them quite different.

After we went through this list, my liberal friend said that he had adjusted his prediction.  He now thought that some of the district court cases, at least, would go for the Church.  He then added an extra idea — the case may arise under the Administrative Procedure Act, on whether the HHS rule was properly promulgated and consistent with the statute.  His point was that a court may have a “procedural” way to block the rule from mandating that the Catholic hospitals pay for insurance that covered contraceptives.  That might be an easier path for a judge to take than overturning Free Exercise case law, if the judge were inclined to stop the rule from taking effect.

Currently, there are over 20 challenges by Catholic hospitals to this provision.  Smart lawyers in each case will be trying to define distinctions that will retain the peyote precedent while letting the hospitals win this case.  Randy Barnett and others had a huge success with the “action/inaction” distinction about the individual mandate. My realist instincts are that we will see the emergence of clever, new distinctions for the hospital cases.

I think that many liberal con law experts were complacent when the individual mandate was challenged.  If they are complacent again about the Catholic hospital cases, then I, for one, will not be surprised to see the current HHS approach struck down.

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Volume 59, Issue 5 (June 2012)

Volume 59, Issue 5 (June 2012)


Articles

Implicit Bias in the Courtroom Jerry Kang et al. 1124
The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law Lumen N. Mulligan & Glen Staszewski 1188


Comments

Techniques for Mitigating Cognitive Biases in Fingerprint Identification Elizabeth J. Reese 1252
Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases Jonathan Slowik 1292
Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law Aaron Sussman 1342
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Stanford Law Review, 64.5 (2012)

Stanford Law Review

Volume 64 • Issue 5 • May 2012

Articles
The City and the Private Right of Action
Paul A. Diller
64 Stan. L. Rev. 1109

Securities Class Actions Against Foreign Issuers
Merritt B. Fox
64 Stan. L. Rev. 1173

How Much Should Judges Be Paid?
An Empirical Study on the Effect of Judicial Pay on the State Bench

James M. Anderson & Eric Helland
64 Stan. L. Rev. 1277

Note
How Congress Could Reduce Job Discrimination by Promoting Anonymous Hiring
David Hausman
64 Stan. L. Rev. 1343

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Swindling/Selling, Bribing/Contributing, Extorting/Taxing

At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.”  Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125.  Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.

Swindling/selling.  The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.”  Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.”  See?  The exchange is identical – Bob hands Alice money.  The difference is sociological (what society values) and economic (can Bob resell the item).  But the structure of the transaction is the same.

Bribing/contributing.  So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Again, the structure of the transaction is identical.  There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.

 Extorting/taxing.  Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice.  The difference here?  Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing).  In the modern government, Alice hires Bob, and Bob sends the payment to the IRS.  The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.

For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting).  Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.

I am wondering, did people know this already?  Are there citations to previous works that explain all of this?  Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?

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Nepotism and the Cabinet

Title 5, §3110 of the United States Code states:

A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.

This anti-corruption statute is reasonable enough, but the plain language also applies to the President.  In other words, John F. Kennedy could not have appointed Robert Kennedy as Attorney General if this provision had existed in 1961.  (The statute was enacted in 1967, probably in response to RFK’s nomination.)

I have serious doubts that Section 3110 is constitutional as applied to a President.  First, as far as I can tell, this is the only statutory limit on the President’s authority to choose his political appointees.  Separation-of-powers would suggest that Congress cannot intrude so bluntly into his discretion to choose close advisors.  Second, if the position is subject to Senate confirmation, that represents an adequate check on executive excess.  Third, presidents would take a significant political hit if they abused their appointment authority to help out friends and relatives.  (BTW, what does relative mean?  Any relation?  Only a spouse, child, or sibling?)

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The Right to Data Portability (RDP) as a Per Se Anti-tying Rule

Yesterday I gave a presentation on “The Right to Data Portability: Privacy and Antitrust Analysis” at a conference at the George Mason Law School. In an earlier post here, I asked whether the proposed EU right to data portability violates antitrust law.

I think the presentation helped sharpen the antitrust concern.  The presentation first develops the intuition that consumers should want a right to data portability (RDP), which is proposed in Article 18 of the EU Data Protection Regulation.  RDP seems attractive, at least initially, because it might prevent consumers getting locked in to a software platform, and because it advances the existing EU right of access to one’s own data.

Turning to antitrust law, I asked how antitrust law would consider a rule that, say, prohibits an operating system from being integrated with software for a browser.  We saw those facts, of course, in the Microsoft case decided by the DC Circuit over a decade ago.  Plaintiffs asserted an illegal “tying” arrangement between Windows and IE.  The court rejected a per se rule against tying of software, because integration of software can have many benefits and innovation in software relies on developers finding new ways to put things together.  The court instead held that the rule of reason applies.

RDP, however, amounts to a per se rule against tying of software.  Suppose a social network offers a networking service and integrates that with software that has various features for exporting or not exporting data in various formats.  We have the tying product (social network) and the tied product (module for export or not of data).  US antitrust law has rejected a per se rule here.  The EU proposed regulation essentially adopts a per se rule against that sort of tying arrangement.

Modern US and EU antitrust law seek to enhance “consumer welfare.”  If the Microsoft case is correct, then a per se rule of the sort in the Regulation quite plausibly reduces consumer welfare.  There may be other reasons to adopt RDP, as discussed in the slides (and I hope in my future writing).  RDP might advance human rights to access.  It might enhance openness more generally on the Internet.  But it quite possibly reduces consumer welfare, and that deserves careful attention.