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Full-Text Articles in Law
Consciousness And Futility: A Proposal For A Legal Redefinition Of Death, Christopher Smith
Consciousness And Futility: A Proposal For A Legal Redefinition Of Death, Christopher Smith
Christopher R Smith
Recent controversies in Texas (with the Marlise Muñoz case) and in California (with the Jahi McMath case) have highlighted a lamentable flaw in the current legal conception of human death, and the difficulty of defining when death finally occurs. The unworkable notion of “brain-death” remains the law in every state in the union, yet the philosophical and scientific foundations of this notion remain open to attack. This article posits that death is a fundamentally social construct, and that it is society at large (through its laws, public opinions, religious attitudes, etc.) that actually defines death. This essay then argues that …
It’S A Mistake: Insurer Cost Cutting, Insurer Liability And The Lack Of Erisa Preemption Within The Individual Exchanges, Christopher R. Smith
It’S A Mistake: Insurer Cost Cutting, Insurer Liability And The Lack Of Erisa Preemption Within The Individual Exchanges, Christopher R. Smith
Christopher R Smith
Within the new individual health insurance exchanges, ERISA preemption is inapplicable to State tort claims against individual exchange insurers, framing the question of whether or not individual exchange insurers, like employment-based insurers, should be protected from State tort liability. While there should be concern for an insurer’s ability to effectively manage costs and eliminate waste, beneficiaries should also have some sort of remedy against their insurer, when insurer cost cutting results in beneficiary harm. To balance the competing interests, a no-fault liability system should be adopted providing both limited liability for individual exchange insurers and preservation of injured beneficiaries’ remedies.