VOLUME 159, ISSUE 6 JUNE 2011

ARTICLES

Health Insurance, Risk, and Responsibility after the Patient Protection and Affordable Care Act

TOM BAKER

 

The Affordable Care Act embodies a new social contract of health care solidarity through private ownership, markets, choice, and individual responsibility, with government as the insurer for the elderly and the poor. The new health care social contract reflects a �fair…  Expand

The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett

PATRICK MCKINLEY BRENNAN
People who are politically �conservative�or �libertarian� in the way those terms are often deployed in contemporary American public discourse almost universally regard the Patient Protection and Affordable Care Act (PPACA) as objectionable and, in a related but distinct… Expand

From Health Care Law to the Social Determinants of Health: A Public Health Law Research Perspective

SCOTT BURRIS
Research over the past three decades has demonstrated that population health is shaped powerfully by �[t]he contexts in which people live, learn, work, and play��also called �social determinants of health� or �fundamental social causes of disease.� The World Health…  Expand

Government as the Crucible for Free Market Health Care: Regulation, Reimbursement, and Reform

ROBERT I. FIELD
Political debates over economic policy commonly pit the virtues of the free market against those of government oversight. Regulatory policy then becomes an ongoing contest between the public and private sectors, infusing policy debates with a sense that it is necessary…  Expand

Regulating Patient Safety: The Patient Protection and Affordable Care Act

BARRY R. FURROW
Patient injury is a predictable feature of health care, particularly in hospitals, in the United States and elsewhere. Since publication of the Institute of Medicine (IOM) report To Err Is Human in 2000, patient safety has come to the forefront of U.S. health care. The…  Expand

Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population�s Well-Being

LAWRENCE O. GOSTIN, PETER D. JACOBSON, KATHERINE L. RECORD & LORIAN E. HARDCASTLE
It is hard to overstate the intense political and media attention given to health care. New medical discoveries and technologies are front-page news stories. In many communities, health care is either the largest or a substantial employer, and rising employee health…  Expand

Commerce Clause Challenges to Health Care Reform

MARK A. HALL
When Congress drafted the Patient Protection and Affordable Care Act (PPACA), Democratic lawmakers and most legal scholars had good reason to be confident of its constitutionality. Under long-established precedent, Congress clearly has the authority, if wanted, to enact…  Expand

Three Models of Health Insurance: The Conceptual Pluralism of The Patient Protection And Affordable Care Act

ALLISON K. HOFFMAN
What risks should health insurance mitigate? American health scholars, politicians, and the public at large answer this question ambivalently. This Article defines three dominant conceptions of health insurance that weave throughout popular and academic discourse and…  Expand

Health Insurance Reform And Intimations Of Citizenship

NAN D. HUNTER
Sometimes what is implied and inferred can be as important as what is stated. In this Article, I argue that the political debate that preceded the enactment of the Patient Protection and Affordable Care Act (PPACA), as well as the legal debate that now swirls around…  Expand

Convicts and Convictions: Some Lessons From Transportation for Health Reform

DAVID A. HYMAN
It wasn�t supposed to go this way. The Democrats had taken both houses of Congress in 2006 and the presidency in 2008. With a 
filibuster-proof majority in the Senate and a sizeable majority in the House, the decades-long road to Democratic delivery of comprehensive…  Expand

Reflections on the National Association of Insurance Commissioners and the Implementation of the Patient Protection And Affordable Care Act

TIMOTHY STOLTZFUS JOST
One of the most common criticisms of the Patient Protection and Affordable Care Act (PPACA) is that it constitutes a government takeover of America�s health care system. By this, of course, is meant a federal government takeover. PPACA will certainly increase the…  Expand

The Freedom of Health

ABIGAIL R. MONCRIEFF, SYMPOSIUM SCHOLAR
What would have happened if the Patient Protection and Affordable Care Act (PPACA)1 really had authorized government �death panels� that would decide whether or not an elderly patient could get treatment? Leaving aside the Commerce Clause and other constraints…  Expand

Health Reform and Public Health: Will Good Policies but Bad Politics Combine to Produce Bad Policy?

HAROLD POLLACK
The enactment of the Patient Protection and Affordable Care Act (PPACA) was an incomplete victory and will remain so even if the new Republican congressional majority does not curtail its provisions. The legislation has many shortcomings and compromises. Most…  Expand

Of Stars and Proper Alignment: Scanning the Heavens for the Future of Health care Reform

ARNOLD J. ROSOFF
On March 23, 2010, the United States took a giant step toward achieving universal health care, an elusive goal it has pursued for almost a century. The legislative fight was bitter and divisive, pitting Republicans against Democrats. It revealed, as effectively as any…  Expand

Brand New Law! The Need to Market Health Care Reform

WILLIAM M. SAGE
The most serious problem with the Patient Protection and Affordable Care Act (PPACA) is not its contents but its packaging. Because it requires significant departures from business as usual in health insurance, health care delivery, and health behavior, PPACA is…  Expand

Health Care Reform�s Wild Card: The Uncertain Effectiveness of Comparative Effectiveness Research

RICHARD S. SAVER
Comparative effectiveness research (CER) stands out as the intriguing wild card of health care reform. CER compares competing treatments against each other to determine which interventions work best, supplying critical information for medical decisionmaking and health

VOLUME 159, ISSUE 5 APRIL 2011

ARTICLES

Arbitration�s Suspect Status

HIRO N. ARAGAKI
 

 

Running the Gamut from A to B: Federal Trademark and False Advertising Law

REBECCA TUSHNET
 

 

The Criminal Class Action

ADAM S. ZIMMERMAN & DAVID M. JAROS

 

The past decade has witnessed the rise of new, massive settlements forged not out of civil litigation but on the periphery of the criminal justice system. Since 2003, prosecutors have demanded that defendants in a variety of high-profile corporate scandals set up…  Expand


COMMENTS

Making Indians �White�: The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy

GREGORY ABLAVSKY
 

The Niqab in the Courtroom: Protecting Free Exercise of Religion in a Post-Smith World

ADAM SCHWARTZBAUM

VOLUME 159, ISSUE 4 MARCH 2011

ARTICLES

Randomizing Law

MICHAEL ABRAMOWICZ, IAN AYRES & YAIR LISTOKIN

 

Legal scholars have debated the impacts of government policy for millenia. In 81 B.C., Chinese scholars argued about the desirability of monopolies in the salt and iron industries in a succession of essays and public debates. These debates were theoretical�with…  Expand


Lasting Legislation

REBECCA M. KYSAR
 

International Courts and the U.S. Constitution: Reexamining the History

JENNY S. MARTINEZ
 

COMMENTS

Mixing up the Medicine: A Remedy for Constitutional Inter-Clause Conflicts and the case of the Anti-Bootlegging Statutes

ALTIN SILA
 

Section 363(b) Restructuring Meets the Sound Business Purpose Test with Bite: An Opportunity to Rebalance the Competing Interests of Bankruptcy Law

JESSICA UZIEL

VOLUME 159, ISSUE 3 FEBRUARY 2011

ARTICLES

The Failure of Mandated Disclosure

OMRI BEN-SHAHAR & CARL E. SCHNEIDER
 

 

Advocacy Revalued

GEOFFREY C. HAZARD, JR. & DANA A. REMUS
 

 

After Deference: Formalizing the Judicial Power for Foreign Relations Law

DEBORAH N. PEARLSTEIN
 

 

COMMENTS

The “Monstrous Heresy” of Punitive Damages: A Comparison to the Death Penalty and Suggestions for Reform

JEREMY C. BARON
 

 

Establishing Rights Without Remedies? Achieving an Effective Civil Gideon by Avoiding a Civil Strickland

MARK C. BROWN
 

 

OTHER

Counting the Days Gone By: A Eulogy for Former Rule 6(A)(2)

 

MICHAEL E. ROSMAN

VOLUME 159, ISSUE 2 JANUARY 2011

ARTICLES

Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record

SETH F. KREIMER
 

 

Wall Street as Community of Fate: Toward Financial Industry Self-Regulation

SAULE T. OMAROVA
 

 

Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court

JAMES E. PFANDER
 

 

COMMENTS

BAPCPA and Bankruptcy Direct Appeals: The Impact of Procedural Uncertainty on Predictable Precedent

LINDSEY FREEMAN
 

 

Illiberal Construction of Pro Se Pleadings

 

RORY K. SCHNEIDER

VOLUME 159, ISSUE 1 DECEMBER 2010

ARTICLES

Redeeming the Missed Opportunities of Shady Grove

STEPHEN B. BURBANK & TOBIAS BARRINGTON WOLFF
 

 

The Shadow of State Secrets

LAURA K. DONOHUE

 

State secrets doctrine catapulted to prominence post-2001, as the executive responded to lawsuits alleging a range of constitutional and human rights violations by refusing to disclose information during discovery and, in some cases, requesting dismissal of suits…  Expand


COMMENTS

Uniformity, Federalism, and Tort Reform: The ErieImplications of Medical Malpractice Certificate of Merit Statutes

BENJAMIN GROSSBERG
 

Denied and Disparaged: Applying the “Federalist” Ninth Amendment

SETH ROKOSKY
 

ESSAYS

Judge Henry Friendly and the Craft of Judging

MICHAEL BOUDIN
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