Law Commons^™

A Closer Look At The Federalization Snowball, Abigail R. Moncrieff

Law Faculty Articles and Essays

While on the academic job market, I presented Federalization Snowballs to several stellar law faculties.1 My argument, in short, was that: (1) federal healthcare spending allows the states to externalize onto the federal government about 40% of the utilization costs associated with their medical malpractice policies (such as the cost of defensive medicine); (2) such an externality systematically distorts a rational state’s incentive to reform medical malpractice; and (3) federalization of medical malpractice is necessary to correct the distortion. In other words, I argued that federalization of healthcare spending through Medicare, Medicaid, and similar programs has snowballed into a need …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail R. Moncrieff

Law Faculty Articles and Essays

Because tort law and healthcare regulation are traditional state functions and because medical, legal, and insurance practices are localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. This conventional view fails to consider the impact that federal healthcare programs have on the states' incentives to regulate. As a result of federal financing, each state externalizes some of the costs of its malpractice policy onto the federal government. The federal government therefore needs to take charge of medical malpractice in order to fix the spillover problem created by existing federal healthcare programs.

Importantly, …

The Likely Impact Of Mandated Paid Sick And Family-Care Leave On The Economy And Economic Development Prospects Of The State Of Ohio, Edward W. Hill, Spence Christopher, Daila Shimek, Ziona Austrian

All Maxine Goodman Levin School of Urban Affairs Publications

This report analyzes the potential impact of a proposed paid sick and family care leave legislation on the economy of the state of Ohio, the economic development prospects of the state and on the management of production processes that depend on highly integrate teams. The report also reviews the literature on the effect of mandated paid sick and family care leave on the industrial relations system—workplace performance and worker retention. Our analysis concludes that there would have been a net cost associated with the paid sick leave and family-care initiative proposed in Ohio with a lower bound estimate of $63.84 …

Reincarnating The “Major Questions” Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail R. Moncrieff

Law Faculty Articles and Essays

This Article proceeds as follows. Part I describes the birth of the major questions exception in MCI and Brown & Williamson and the death of the exception in Massachusetts. Part II identifies the three forms of the major questions rule that the Court and the literature have proposed to date and rejects all three, concluding that the rule ought not to be reincarnated if it cannot also be reformed. Part III proposes the noninterference form of the Chevron exception, demonstrating its foundations in the history of the major questions cases and demonstrating its similarities to other noninterference rules. Part IV …

Payments To Medicaid Doctors: Interpreting The “Equal Access” Provision, Abigail R. Moncrieff

Law Faculty Articles and Essays

This Comment analyzes the circuit split that has arisen as courts have confronted challenges to Medicaid payments. Part I provides background on the Medicaid program and the circuit split, and it identifies and explicates two competing rules for measuring adequacy of Medicaid payments: the Fifth and Seventh circuits' "access metric" and the Ninth Circuit's "cost metric." Parts II and III identify problems with these two rules, and criticizes them as inconsistent with the statute's text, purpose, and intent. Part IV proposes a new rule, an "MCO metric," and explains why that rule is the best interpretation of Medicaid's reimbursement provision.

Access To Health Care: What A Difference Shades Of Color Make, Gwendolyn R. Majette

Law Faculty Articles and Essays

No abstract provided.

Looking Backward: The Twentieth Century Revolutions In Psychiatry, Law And Public Mental Health, Sheldon Gelman

Law Faculty Articles and Essays

Do histories of psychiatry make a difference--or have legal implications--in the present? Does our current situation help explain what historians say about psychiatry's past? Focusing on the past half century--the era of medications-- this paper explores the reciprocal relationship between the present and the past in psychiatry. Part II sketches the medical developments that constitute the subjects of any history of psychiatry. This Part also examines related developments in law. Part III introduces some problems of psychiatric historiography and examines some historians' attempts to deal with them. Part IV analyzes the account of psychiatry's past contained in Edward Shorter's well-regarded …

The Law And Psychiatry Wars, 1960-1980, Sheldon Gelman

Law Faculty Articles and Essays

The chapter of the book excerpted below examines litigation developments from the late 1960s to the early 1980s. In law no less than in psychiatry, professional judgments produced anomalous results and professional processes worked in unexpected ways when it came to medications. These departures advanced a public mental health vision that was functionally the same as psychiatrists', even if couched in utterly different and more legalistic terms. Psychiatrists hailed medications as a medical revolution; lawyers by and large ignored the drugs. Yet, both professions reached the same general conclusions about what should be done.Commentators at the time saw an emerging …

Rare Diseases, Drug Development And Aids: The Impact Of The Orphan Drug Act, Michael Henry Davis, Peter S. Arno, Karen Bonuck

Law Faculty Articles and Essays

In this article, we examine the Orphan Drug Act with an eye toward its contribution to the public interest, using AIDS drugs to illustrate many of the central points. The major policy question is, How, if at all, can the act be used to meet the legislative goal of stimulating drug development for small patient populations without resulting in prices that make drugs inaccessible?

Patents In Health Care - Subsidy And Victimisation?, Michael Henry Davis

Law Faculty Articles and Essays

In theory, a patent provides a monopoly over a product or a process in return for the disclosure of an inventive discovery. In practice, however, it is an indirect form of government intervention in healthcare which carries enormous calculable costs but whose benefits are entirely a matter of faith. It is ironic that in healthcare of all areas, where the guiding principle is the application of the scientific method, extraordinary investments are made in a system which so far has not been subjected to any scientific test.

Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Power Hurdles, S. Candice Hoke

Law Faculty Articles and Essays

This Article proceeds in four Parts. The first briefly summarizes the approach of each of the pending health reform bills and distills those portions relevant to current Tenth Amendment and Spending Clause analysis. Provisions that would impose on States the financial and administrative responsibility for achieving Federal regulatory objectives or that specify punitive measures to be taken against States choosing not to participate in the cooperative program are critical features for the inquiry. Employing these criteria, the first Part identifies seven distinct and largely novel models of problematic regulatory instructions that warrant more probative analysis.The second Part briefly outlines the …

Book Review: An Overview Of Health Care Reform: A View Of The Forest--An Introduction To Taft Strategic Atlas: U.S. Health Care Reform By Frederick I. Taft, Stephen J. Werber, Stephen R. Smith

Law Faculty Articles and Essays

Those interested in health law, who wish to follow and participate in the national debate, need a method of organizing the trees of definition, individual issues, and plans found in the forest of the debate. The cliche of not seeing the forest for the trees is reversed in this debate as we all can see the forest, but we cannot distinguish or truly discern its contents. To aid in understanding these issues, The Journal of Law and Health has taken the unusual step of reprinting a significant portion of a new book. The Editors believe that a traditional Book Review …

Symposium: Ohioans Without Health Insurance: How Big A Problem? Are There Solutions?, Alan C. Weinstein

Law Faculty Articles and Essays

Ohioans Without Health Insurance: How Big A Problem? Are There Solutions?, was the INAUGURAL Conference of Cleveland State University's Law & Public Policy Program, an interdisciplinary program of instruction, public service and research sponsored jointly by the Cleveland-Marshall College of Law and the Maxine Goodman Levin College of Urban Affairs. The goal of the Conference was to facilitate an exchange of information and views among representatives of the public and major interests concerned with the growing numbers of persons who either lack health insurance or have inadequate coverage.

Mental Hospital Drugs, Professionalism, And The Constitution, Sheldon Gelman

Law Faculty Articles and Essays

No abstract provided.