Insurance Law Commons^™

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Wilson R. Huhn

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

Claims And Coverage In Montana For Damage To A Victim's Family Members, Greg Munro

Faculty Journal Articles & Other Writings

This article explores those situations in which Montana tort law now recognizes secondary injuries to family members resulting from primary severe injuries or death of another family member, which recognition may invoke additional auto insurance coverage. The article first makes a short survey of the development of Montana tort law insofar as it has come to take cognizance of family injuries. The article then looks at the application of insurance law to those claims with special emphasis on recent cases.

Who Pays? Who Benefits? Unfairness In American Health Care, Clark C. Havighurst, Barak D. Richman

Faculty Scholarship

American-style health insurance greatly amplifies price-gouging opportunities for health care providers, who inflate prices both to enrich themselves and to subsidize and expand the nation’s health care enterprise. To the extent that lower- and middle-income Americans with private health coverage pay premiums that go to support and expand the system, they are subject to an unfair (regressive) “head tax” levied by unaccountable entities for ostensibly public but also private purposes. Lower-income premium payers also often pay for costly health coverage designed to suit the economic interests and values of professional and other elites rather than their own. They also appear …

A Cautious Path Forward On Accountable Care Organizations, Barak D. Richman, Kevin A. Schulman

Faculty Scholarship

The wave of new Accountable Care Organizations (ACOs), spurred by financial incentives in the Affordable Care Act, could become the latest chapter in the steady accumulation of market power by hospitals, health care systems, and physician groups. The main purpose behind forming many ACOs may not be to achieve cost savings but instead to strengthen negotiating power over purchasers in the private sector. This would be an unfortunate sequel to the waves of mergers in the 1990s when health care entities sought to counter market pressure from managed care organizations. The possibility that ACOs might further concentrate health care markets …

The Future Of Climate Change Litigation After Aep V. Connecticut, Amanda Leiter, Rick Faulk, Eric Lasker, Mike Myers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Managing The Next Deluge: A Tax System Approach To Flood Insurance, Charlene Luke, Aviva Abramovsky

Journal Articles

This Article critiques the National Flood Insurance Program and proposes an alternative insurance plan that would use the strengths of the federal tax system to address the complexities of flood loss and provide basic coverage for all individuals. The Article also discusses the current tax rules applicable to flood loss and proposes methods for harmonizing such rules with the proposed program.

Using Payroll Deduction To Shelter Individual Health Insurance From Income Tax, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher and his colleagues assess the impact of state laws requiring or encouraging employers to establish ‘‘section 125’’ cafeteria plans that shelter employees’ premium contributions from tax.

The Future Of Employment-Based Health Insurance After The Patient Protection And Affordable Case Act, Kathryn L. Moore

Law Faculty Scholarly Articles

In the United States, unlike in all other advanced industrial states, health care is financed principally through employment-based health insurance. In 2009, more than 156 million individuals under the age of sixty-five, or 59% of that population, were covered by employment- based health insurance.

On March 21, 2010, President Obama signed the Patient Protection and Affordable Care Act (PPACA). Described as seminal as the enactment of the Employee Retirement Income Security Act (ERISA), PPACA fundamentally reforms the American health care system. PPACA, however, does not eliminate the system’s reliance on employment- based health insurance. Instead, it builds on, and arguably …

A New Deal In A World Of Old Ones, Theodore Ruger

All Faculty Scholarship

No abstract provided.

Plural Constitutionalism And The Pathologies Of American Healthcare, Theodore Ruger

All Faculty Scholarship

No abstract provided.

When Enough Is Not Enough: Correcting Market Inefficiencies In The Purchase And Sale Of Residential Property Insurance, Kenneth S. Klein

Faculty Scholarship

Each year at least hundreds, and often thousands of Americans lose their homes to natural disasters striking populated areas. Tens of thousands lose their homes to single-instance fires, floods, or other catastrophes. The majority of these homeowners are underinsured, meaning they have less insurance than it will cost to rebuild their homes. This Article analyzes whether such underinsurance indicates correctible inefficiencies in the residential property insurance markets. The Article identifies two inefficiencies: (1) Inadequate information, which impairs informed pricing decisions by purchasers; and (2) Dispute costs (such as litigation) in the instances of loss exceeding coverage. The Article proposes addressing …

The Provider-Monopoly Problem In Health Care, Clark C. Havighurst, Barak D. Richman

Faculty Scholarship

Although federal judges have resisted giving due effect to standard antitrust principles in scrutinizing mergers of nonprofit hospitals, the presence of health insurance makes it especially important to oppose monopoly in health services markets. U.S.-style health insurance gives monopolist providers extraordinary pricing freedom, thus exacerbating monopoly’s usual redistributive effects. Significant allocative inefficiencies - albeit not the kind generally associated with monopoly - also result when the monopolist is a nonprofit hospital. Because it is probably impossible to undo past hospital mergers creating undue market power, we suggest some alternative remedies. One is to apply antitrust rules against "tying" arrangements so …

Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number …

Turning Citizens Into Subjects: Why The Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In 2010 something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. While the author realizes that writers make lots of factual claims that readers are wise to be skeptical about, he proves that an economic mandate like this one is unprecedented. If this mandate had ever happened before, everyone reading this passage would know all the contracts the federal government requires them to make, upon pain of a penalty enforced by the Internal Revenue Service (IRS). No reader, however, can recite any such mandate and …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee

Faculty Scholarship

No abstract provided.

Reforming State Mental Health Parity Law, Stacey A. Tovino

Scholarly Works

This Article is the final installment in a three-part project that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness in the context of health insurance. The first installment in this series narrowly inquired as to whether the postpartum mood disorders should be classified as physical or mental illnesses in a range of health law contexts, including the context of health insurance. The second installment was broader in scope and challenged a number of federal provisions that allow publicly- and privately-funded health care programs and plans to provide mental health insurance benefits that are less comprehensive …

Regulation Not Prohibition: The Comparative Case Against The Insurable Interest Doctrine, Sharo Michael Atmeh

Northwestern Journal of International Law & Business

American law requires an insurable interest—a pecuniary or affective stake in the subject of an insurance policy—as a predicate to properly obtaining insurance. In theory, the rule prevents both wagering on individual lives and moral hazard. In practice, the doctrine is avoided by complex insurance transaction structuring to effectuate both origination and transfers of insurance by individuals without an insurable interest. This paper argues that it is time to abandon the insurable interest doctrine. As both the English and Australian experiences indicate, elimination of the insurable interest doctrine will have little detrimental pecuniary effect on the insurance industry, while freeing …

The Unaffordable Health Care Act - A Reponse To Professors Bagley And Horwitz, Douglas A. Kahn, Jeffrey H. Kahn

Articles

The Patient Protection and Affordable Care Act of 2010 has stirred considerable controversy. In the public debate over the program, many of its proponents have defended it by focusing on what is sometimes called the “free-rider” problem. In a prior article, we contended that the free-rider problem has been greatly exaggerated and was not a significant factor in the congressional decision to adopt the Act. We maintained that the free-rider issue is a red herring advanced to trigger an emotional attraction to the Act and distract attention from the actual issues that favor and disfavor its adoption. In a recently …

Why It's Called The Affordable Care Act, Nicholas Bagley, Jill R. Horwitz

Articles

The Patient Protection and Affordable Care Act of 2010 (“ACA”) raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled “Maintenance of Mini-mum Essential Coverage,” but better known as the “individual mandate,” requires most Americans to obtain health insurance for themselves and their dependents by 2014. We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation’s health-care system suffers from countless problems. By improving quality, controlling costs, and extending coverage to the uninsured, the …

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes—or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by imposing …

Cultivating Justice For The Working Poor: Clinical Representation Of Unemployment Claimants, Colleen F. Shanahan

Faculty Scholarship

The combination of current economic conditions and recent changes in the United States' welfare system makes representation of unemployment insurance claimants by clinic students a timely learning opportunity. While unemployment insurance claimants often share similarities with student attorneys, they are unable to access justice as easily as student attorneys, and as a result, face the risk of severe poverty. Clinical representation of unemployment claimants is a rich opportunity for students to experience making a difference for a client, and to understand the issues of poverty and justice that these clients experience along the way. These cases reveal that larger lessons …

So Much For The Commerce Clause Challenge To Individual Mandate Being "Frivolous", Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as "frivolous"? Well, as Jonathan notes, the administration is now apparently telling the New York Times that the individual insurance "requirement" and "penalty" is really an exercise of the Tax Power of Congress.

Under Attack: Terrorism Risk Insurance Regulation, Alexia Brunet Marks

Publications

Scholarly debates over the September 11th attacks focus predominantly on high-profile issues, such as torture, preventive detention, interrogation, privacy, and surveillance. These debates have overshadowed the equally important and far-reaching issue of terrorism risk insurance, which not only involves billions of dollars, but provides powerful incentives to keep us safe. Developing a sound understanding of the market for terrorism risk insurance is essential to guiding the difficult determination of the appropriate balance between private and public responsibility for preventing and (when necessary) compensating for terrorism.

The attacks of September 11th represented one of the costliest insurance events in American history. …

Combining Forces: The Joint Defense Agreement In Civil Litigation, Stephen Messer

Stephen Messer

From day one of law school aspiring lawyers are taught that information shared in confidence between a lawyer and his client is confidential. Although all lawyers are well aware of this, surprisingly few know that conversations with a client and someone else's lawyer can also be privileged. This is what happens when a joint defense agreement is created; Joint defense agreements extend the attorney client privilege throughout the entire defense camp in cases where multiple defendants and their counsel have common interests in the litigation. This often overlooked, yet highly effective legal strategy may serve as a valuable tool for …

The Impact Of Regionally Differentiated Entitlement To Ei On Charter-Protected Canadians, Sujit Choudhry, Michael Pal

Sujit Choudhry

Under Canada’s Employment Insurance (EI) program, access to unemployment benefits varies according to the regional unemployment rate. Previous studies have shown that this regime works to the disadvantage of certain provinces and urban areas. In this paper we measure the impact of the variable regional entrance requirements on specific minority workers, including visible minorities, linguistic minorities, recent immigrants, and naturalized citizens. We find that over the period 2000-2010, the regional variation in access to EI results in certain minority workers being required to work modestly more hours to qualify for EI than the average worker. Though the findings with regard …

Ocips In The Future Of The Insurance Industry: Legal And Regulatory Considerations, Chad G. Marzen

Chad G. Marzen

Owner-Controlled Insurance Programs (OCIPs, also referred to “Wrap-Up” programs), are becoming a popular insurance program in the construction industry. Some states have placed statutory restrictions and/or prohibitions on OCIPs. However, there are only 10 states to date which have even enacted any statute concerning OCIPs.

In this article, I contend that the future availability of OCIPs in the insurance industry may largely be dictated on statutory grounds. It is a call for state legislatures to critically examine the policies and purposes of OCIPs and to enact legislation which provides guidance to the industry and courts. First, two cases, one from …

Requirements Of A Valid Islamic Marriage Vis-À-Vis Requirements Of A Valid Customary Marriage In Nigeria, Olanike Sekinat Odewale Mrs

Olanike Sekinat Adelakun

Grading The Graders And Reforming The Reform: An Analysis Of The State Of Public Education Ten Years After No Child Left Behind, Jonathan C. Augustine, Craig M. Freeman

Jonathan C. Augustine

Construction Defects: Are They “Occurrences”?, Chris French

Christopher C. French

An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”.

The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …

While Effusive, "Conclusory" Is Still Quite Elusive: The Story Of A Word, Iqbal, And A Perplexing Lexical Inquiry Of Supreme Importance, Donald J. Kochan

Donald J. Kochan

The meaning of the word “conclusory” seems really, quite elusory. Conclusory is a widespread, common, and effusive word in the modern legal lexicon. Yet you would not necessarily know that by looking through many dictionaries. “Conclusory” has been a late comer to the pages of most dictionaries. Even today, not all dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. Yet the word “conclusory” has taken center stage in the procedural plays of civil litigation with …