Law Commons^™

The Uneasy Case For The Affordable Care Act, Stephen E. Sachs

Law and Contemporary Problems

The constitutionality of the Affordable Care Act is sometimes said to be an "easy" question, with the Act's opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won't be easy, and the arguments against it sound in law rather than politics.

Written to accompany and respond to Erwin Chemerinsky's essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. …

Foreword, Neil S. Siegel

Law and Contemporary Problems

The articles published in this volume of Law and Contemporary Problems address the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA), either directly or indirectly. They were originally presented at a conference at Duke Law School on September 16, 2011. Entitled “The Constitutionality of the Affordable Care Act: Ideas from the Academy,” the conference was inspired by the belief that legal academics who specialize in U.S. constitutional law, health law and policy, or statutory interpretation are making distinctive contributions to the national debate over the constitutionality of the ACA. These legal academics are …

The Impact Of Tax-Exempt Status: The Supply-Side Subsidies, Richard L. Schmalbeck

Law and Contemporary Problems

Schmalbeck provides some background and history of the tax rules governing health care institutions and assess the significance of the subsidies these tax rules create.

Distributive Injustice(S) In American Health Care, Clark C. Havighurst, Barak D. Richman

Law and Contemporary Problems

Havighurst and Richman seek to show the nature--and to suggest the cumulative attitude--of the many regressive tendencies of the financing, regulatory and legal regime governing the private side of US health care.

Measuring Distributive Injustice On A Different Scale, Tom Miller

Law and Contemporary Problems

Miller highlights the importance of education as a powerful contributor to significant differences in health outcomes. Enhancing educational opportunities for lower-income Americans may help to ensure that only no child, but also no patient, is left behind.

Distributive Justice In Pharmaceutical Torts: Justice Where Justice Is Due?, Chen-Sen Wu M.D., J.D.

Law and Contemporary Problems

Chen-Sen Wu concludes that, until empirical evidence clarifies the net distributive impact of pharmaceutical torts, the capacity for tort reform to rectify distributive injustices in health care will remain far from obvious.

A Copernican View Of Health Care Antitrust, William M. Sage, Peter J. Hammer

Law and Contemporary Problems

Sage and Hammer use the analogy of Copernican astronomy to suggest that understanding the dramatic change wrought by managed care requires a conceptual reorientation regarding the meaning of competition in health care and its appropriate legal and regulatory oversight. Both share the belief that misperceiving the world limits potential for technical and social progress.

How The Health Care Revolution Fell Short, Clark C. Havighurst

Law and Contemporary Problems

Managed Care I proved itself a poor public servant was appropriately deposed in the counter-revolution it inspired. Managed Care II apparently believes that, by cultivating a more benevolent image than its predecessor, it will be able to hang onto power and ride out any "perfect storm" that may be brewing and that its members can survive as private functionaries in a market increasingly dominated and controlled by government.