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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 …
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff
Abigail R. Moncrieff
This article presents a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world. The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting—the decisions that receive substantive constitutional protection under modern doctrine—are decisions that are of unusually uncertain individual and social value. The …