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Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Abigail R. Moncrieff
This article confronts and challenges an emerging scholarly consensus that criticizes the hybridization of substantive and structural arguments in the litigation over the Patient Protection and Affordable Care Act (ACA). Although there is no doubt that the ACA plaintiffs have requested and the ACA judges have provided a hybrid substantive-structural holding, there is nothing at all unusual about this indirect strategy for protecting constitutional liberty interests; it is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review.” The article considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review, and concludes that …
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
Abigail R. Moncrieff
This article presents a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world. The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting—the decisions that receive substantive constitutional protection under modern doctrine—are decisions that are of unusually uncertain individual and social value. The …
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
Abigail R. Moncrieff
This article presents a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world. The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting—the decisions that receive substantive constitutional protection under modern doctrine—are decisions that are of unusually uncertain individual and social value. The …
The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff
The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff
Abigail R. Moncrieff
In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …