Law Commons^™

Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both have …

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

This Essay begins to explore how Medicaid, after the Patient Protection and Affordable Care Act, metamorphoses from exclusion and limitations in access and benefits to a form of social insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding these numbers, both in terms of the states that are expanding and the states that are opting out. States that refuse to expand their Medicaid programs are denying millions of Americans the benefit of a precious legal entitlement. It is essential that the states understand the power—and the potential—of this evolving social …

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Law Faculty Scholarly Articles

This essay explores how the law of Medicaid after fifty years creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). To that end, this Essay first will study the legislative reformation that led to universality and its quantifiable effects. The Essay then will assess and evaluate Medicaid’s new universality across four dimensions, …

An Administrative Stopgap For Migrants From The Northern Triangle, Collin D. Schueler

Law Faculty Scholarly Articles

From 2011–2014, the United States Department of Homeland Security recorded an extraordinary increase in the number of unaccompanied children arriving at the southern border from Central America’s “Northern Triangle”—the area made up of El Salvador, Guatemala, and Honduras. In fact, in fiscal year 2014, United States Customs and Border Protection apprehended over 50,000 unaccompanied children from the Northern Triangle. That is thirteen times more than just three years earlier.

This Article examines the intersecting humanitarian and legal crises facing these children and offers an administrative solution to the problem. The children are fleeing a genuine humanitarian crisis—a region overrun by …

Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon signing Medicare and Medicaid into law in 1965. Although the spotlight shone on Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest in its safety net—but only some of them. Medicaid’s exclusion of childless adults and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing to its stigma and seeming political fragility. Now, Medicaid touches every American life. One in five Americans benefits from Medicaid’s healthcare coverage, and that …

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Law Faculty Scholarly Articles

This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Law Faculty Scholarly Articles

Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts …

What Gets Judges In Trouble, Richard H. Underwood

Law Faculty Scholarly Articles

I wrote this article to collect some cautionary material about “what gets judges in trouble.” I wanted something I could offer to our state judges, practitioners, and my legal ethics students. While I have never been a judge, and while I have never worked for a judicial conduct organization, I have been a law professor for almost twenty-five years and the chairman of a state bar association ethics committee for fourteen. I am not the kind of person who would refrain from holding forth just because I may not know what I am talking about.

When I started out, I …

Genetics, Genetic Testing, And The Specter Of Discrimination: A Discussion Using Hypothetical Cases, Richard H. Underwood, Ronald C. Cadle

Law Faculty Scholarly Articles

A "genetic revolution" is upon us. Techniques for genetic testing have increased in sophistication, and an international effort to map and sequence human DNA—The Human Genome Project ("HGP")—is now well under way. We are beginning to exploit our new found genetic knowledge. Recognition of the relationship between developments in genetic science, law, and public policy, is creeping into the "literature" and into the law school curriculum. Even the popular 60 Minutes television "news magazine" recently did a program on the perils of genetic testing. Still, for lawyers and policymakers at least, the material is not all that accessible.

The following …

“Some Kind Of Lawyer”: Two Journeys From Classroom To Courtroom And Beyond, Terry Birdwhistell

Law Faculty Scholarly Articles

In January 1996 a panel of the American Bar Association released a report concluding that "discrimination continues to permeate the structures, practices and attitudes of the legal profession." It has been a long journey in women's efforts to obtain equity in both law schools and in the legal profession generally. This article is composed of two interviews with University of Kentucky College of Law graduates: Norma Boster Adams (’52) and Annette McGee Cunningham (’80). Twenty-eight years separated Norma Adams and Annette Cunningham at the College of Law. They faced different obstacles and chose varied paths to success. While each can …

Introduction, The Sesquicentennial Of The 1848 Seneca Falls Women's Rights Convention: American Women's Unfinished Quest For Legal, Economic, Political, And Social Equality, Carolyn S. Bratt

Law Faculty Scholarly Articles

On July 19, 1998, America celebrated the 150th anniversary of the Seneca Falls Convention. Almost three hundred women and men including Lucretia Mott, Elizabeth Cady Stanton, and Frederick Douglass met on that July date in 1848 at Seneca Falls, New York, for a two-day discussion of the "social, civil and religious rights of woman." At the conclusion of the meeting, sixty-eight women and thirty-two men signed their names to a Declaration of Sentiments and this country's organized women's rights movement began. The Declaration of Sentiments was the earliest, systematic, public articulation in the United States of the ideas that fuel …

A Primer On Kentucky Intestacy Laws, Carolyn S. Bratt

Law Faculty Scholarly Articles

Some form of inheritance has existed since ancient times. The biblical story of Esau, who sold his birthright to his younger brother Jacob for a mess of potage, demonstrates the long-standing recognition of inheritance rights. Although the United States Constitution does not explicitly guarantee to the owner of property a right to transmit that property upon death to another person, the United States Supreme Court has held that a total abrogation of the right of inheritance without the payment of just compensation is unconstitutional.

Every state has a system of inheritance created by statute and by case law. State inheritance …

Kentucky's New Rules Of Professional Conduct For Lawyers, Eugene R. Gaetke

Law Faculty Scholarly Articles

On July 12, 1989, the Kentucky Supreme Court adopted its own version of the American Bar Association's 1983 Model Rules of Professional Conduct as the body of disciplinary law applicable to lawyers practicing in the state. These new rules constitute a major improvement in the state's law of legal ethics. Their adoption should be considered a victory for Kentucky lawyers and, more importantly, a victory for the people of the state, the ultimate beneficiaries of the regulation of the legal profession.

As with most victories, the adoption of the new rules was not unequivocally positive. Kentucky's version of the Model …

Sentencing: The Use Of Psychiatric Information And Presentence Reports, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

It has become apparent that the two disciplines of law and psychiatry have a common "interface" in the field of criminal justice. Commentators generally agree that the administration of criminal justice is greatly aided by psychiatrists and psychiatric data. That is not to say, however, that the meeting of the disciplines has been without incident or misunderstanding. Problems have arisen because of divergent attitudes and goals of the professions. Some commentators say that the concerns of the two disciplines are not the same; others claim that much of the problem lies in the over-estimation of the certainty and reliability of …