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Full-Text Articles in Law
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff
Faculty Scholarship
As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into structural federalism analysis. The breadth and depth of scholarly criticism on this point is surprising, however, given that judges today frequently choose indirect methods for protecting substantive constitutional values, including structural and process-based methods of the kinds at issue in the ACA litigation. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another …
Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff
Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff
Faculty Scholarship
The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to …
Obamacare's (3) Day(S) In Court, Abigail Moncrieff
Obamacare's (3) Day(S) In Court, Abigail Moncrieff
Faculty Scholarship
Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …