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Full-Text Articles in Law
When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff
When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff
Abigail R. Moncrieff
There was an argument that Solicitor General Donald B. Verrilli 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’ health care savings and consumption decisions. Because consumer-directed health care, 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 health care market that arise from individual decisions to …
Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff
Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff
Abigail R. Moncrieff
There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of these puzzles. The central idea is that modern substantive rights—the rights to speech, religion, association, reproduction, and parenting—protect …