Law Commons^™

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

Scholarly Works

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

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

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Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

How The Poor Got Cut Out Of Banking, Mehrsa Baradaran

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The United States currently has two banking systems — one for the rich, one for the poor. It wasn’t always this way. Throughout U.S. history, the government has enlisted certain banking institutions to serve the needs of the poor and offer low cost credit to enable low-income Americans to escape poverty. Credit unions, savings and loans and Morris Banks are three prominent examples of government-supported institutions with a specific focus of helping the poor. Unfortunately, these institutions are no longer fulfilling their missions and high-cost, usurious, and sometimes predatory check-cashers and payday lenders have quickly filled the void. These fringe …

Social Proposals Under Rule 14a-8: A Fall-Back Remedy In An Era Of Congressional Inaction, Margaret V. Sachs

Scholarly Works

More than a decade ago, institutional investors, notably labor unions and pension plans, began using shareholder proposals as a vehicle for advancing progressive social causes. These proposals have recently garnered heightened levels of shareholder support. While even majority support for a proposal does not insure its adoption by the board of directors, appreciable (even if not majority) support can nonetheless sometimes precipitate adoption, or at least negotiation (which can lead to adoption). This Essay argues, first, that with Congress now largely dysfunctional, social proposals have acquired a whole new role—that of a company-by-company, fall-back mechanism for solving social problems that …

Narrative Preferences And Administrative Due Process, Jason A. Cade

Scholarly Works

This Article illustrates, through sociolinguistic analysis, how an adjudicator’s biases against certain narrative styles can influence his or her assessments of credibility, treatment of parties, and decision-making in the administrative law setting. Poverty lawyers have long observed that many claimants in the administrative state continue to face procedural and discursive obstacles. Applying insights from a growing field of inter-disciplinary research, including conversation analysis, linguistics, and cognitive studies, this Article builds upon those observations by more precisely exploring through a case study of an unemployment insurance benefits hearing how structural and narrative biases can work to deny an applicant due process …

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

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This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

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This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …

The Pension Game: Age- And Gender-Based Inequities In The Retirement System, Camilla E. Watson

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This Article begins by stressing the importance of retirement benefits in general and employer-provided benefits in particular. It then addresses specific current issues of age and gender discrimination under both the private retirement and Social Security systems. Gender-based discrimination is emphasized because of the overlap between gender-based discrimination and age discrimination. Finally, this Article suggests specific reforms for a fairer and more adequate systems in the twenty-first century.