Digital Commons Network^™

Ending The Economic War Among States, Nathan Altstadt

Cleveland State Law Review

The United States is under siege; however, the cause is not a foreign adversary. Rather, infighting among states to attract and retain big businesses is jeopardizing the Nation’s economic prosperity.

States compete for businesses, using tax incentives, hoping to capitalize on the benefits these businesses represent. Benefits include improved job growth numbers, a future increase in tax revenue, or, simply, elevated political clout. While competition can lead to a more efficient use of resources, unregulated competition between states for businesses does not illustrate this theory. A national auction for a business, where states are blind to rival offers, may, and …

A Surging Drug Epidemic: Time For Congress To Enact A Mandate On Insurance Companies And Rehabilitation Facilities For Opioid And Opiate Addiction, Alanna Guy

Journal of Law and Health

This Note begins with a discussion of both the national opioid problem as well as the specific epidemic in Ohio as an example of how it has grown within all of the states. Part II discusses the differences between prescription opioids and opiates, how they can be obtained, what effects they have on the human body, and why the government has an interest in this growing problem. Next, this Note explains how and why there was an increase in access and addiction to prescription opioid pain medication. Following this explanation, the steps the government has taken to try to rectify …

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …

Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff

Law Faculty Articles and Essays

The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.

Transcript: The Case For National Political (Rather Than State Or Judicial) Regulation Of Healthcare, Abigail R. Moncrieff

Law Faculty Articles and Essays

One place where judges are becoming increasingly involved is in dormant Commerce Clause cases, and it would have been possible to issue the exact same holding in Sorrell by using dormant commerce analysis. To make the exact same challenge (it would have been up to the litigants, but) it would have been possible to present a similar challenge on dormant Commerce Clause grounds and to have said that this creates uneven regulation for pharmaceutical companies that need to craft different marketing approaches for different states according to different rules about what kinds of data they're allowed to use and not …

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Law Faculty Articles and Essays

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts' incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and processbased methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed "semisubstantive review" and another theorized as "judicial manipulation of legislative …

Internet Pharmacies: Cyberspace Versus The Regulatory State , Ty Clevenger

Journal of Law and Health

The unique qualities of e-commerce make it difficult to regulate under any circumstances, but the growth of online pharmacies in particular is far outpacing the ability of government officials to investigate and enforce existing drug laws. In 1999, Americans spent an estimated $44 million purchasing prescription drugs from online pharmacies, a figure that is projected to reach $1 billion per year by 2003. In December of 1999, President Clinton proposed $10 million in new funding for the FDA to regulate Internet pharmacies and hire 100 new employees, but the FDA has yet to explain whether this would be enough to …

Mr. Justice Holmes's Constitutionally Crooked Path Part Ii: The State Sovereignty Jurisdictional Stopgap , Mitchell B. Weiss

Cleveland State Law Review

This article analyzes the last turn in Justice Holmes's constitutionally crooked path, largely by penetrating to the very core of the Supreme Court's recent decision in Alden v. Maine. Part I therefore traces the Court's waffling attitude towards the division of regulatory power between the state and federal governments. Then, against this backdrop, Part II takes the jurisdictional turn by analyzing the Court's most recent attempt to resuscitate the Tenth Amendment's check on Congress's Commerce Power. To sharpen the focus, much of this article will focus on the Fair Labor Standards Act, a federal statute that always seems to sit …

Arizona Corporation Commission V. Media Products, Inc.: Clarification Of Competing Federal And State Securities Regulation, Marianne M. Jennings

Cleveland State Law Review

While most regulators at both the state and federal levels espouse an attitude and philosophy of cooperation, the fact is that, because of conflicts in authority and unresolved constitutional issues, most nationwide offerings are becoming more difficult to execute and are burdened by so many bureaucratic loopholes that the role of the United States as a capital market in the international sense may be greatly impaired. The purpose of this Article is to explain the coexistence of federal and state securities regulation, define the resolved constitutional issues, and discuss those that remain unresolved. Finally, the Article proposes a peaceful coexistence …

National Minimum Drinking Age Act Of 1984: Once Again Congress Mails Home Another Fist, Kevin Kadlec

Cleveland State Law Review

This Note will examine the federal interest as it conflicts with the states' interest in setting their own drinking ages, which are derived from section two of the twenty-first amendment and the tenth amendment, respectively. This conflict is given sharper focus when examined in the context of Supreme Court tests and balancing measures developed in recent decades in these constitutional arenas. A controversy has arisen because of the congressional imposition of a national minimum drinking age on the states through coercive withholding of federal funds. It is the purpose of this Note to examine the controversy created by the Drinking …