Supreme Court of the United States Commons^™

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers 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' healthcare savings and consumption decisions. Because consumer-directed healthcare, 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 healthcare market that arise from individual decisions to self-insure. This argument would …

Stare Decisis In The Inferior Courts Of The United States, Joseph Mead

Law Faculty Articles and Essays

While circuit courts are bound to fallow circuit precedent under "law of the circuit" the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a "law of the district" similar to that of circuit courts. Through this narrow proposal, I explore the historical stare decisis practices in federal courts that are not Supreme.

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Law Faculty Articles and Essays

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 courts' incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and processbased methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed "semisubstantive review" and another theorized as "judicial manipulation of legislative …

The Freedom Of Health, Abigail R. Moncrieff

Law Faculty Articles and Essays

This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the HlNl vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should …

The Supreme Court’S Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Law Faculty Articles and Essays

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court's decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped non-economic and punitive damages for medical malpractice litigation, weakening the tort system's deterrent capacity in those states. This Article suggests that the trend of …

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Law Faculty Articles and Essays

Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)

Regulating White Desire, Reginald Oh

Law Faculty Articles and Essays

This Article contends that segregationist justifications for miscegenation and segregation laws shows that those laws effectively imposed a legal duty on whites to adhere to cultural norms of endogamy. Dominant social groups enforce rules of endogamy⁠—the cultural practice of encouraging people to marry within their own social group⁠—to protect the dominant status of their individual members and of the social group in general. Thus, laws prohibiting interracial marriages regulated white desire in order to protect the dominant status of whites as a group. The Loving Court, therefore, ultimately was correct in declaring that miscegenation laws denied blacks equal protection.

Part …

Implications Of The Altmann Decision On Former Yugoslav States, Milena Sterio

Law Faculty Articles and Essays

The law of state succession is one of the most complicated areas of law. Scholars and politicians have seldom reached a consensus on the exact public international law rules in this area. The recent breakup of former Yugoslavia exemplifies some of the difficulties relating to, inter alia, the distinction between dissolution and secession, the allocation of debt and assets among successor states, and more particularly, the resolution of individual disputes among citizens of former Yugoslav republics. The latter issue has been particularly important, as numerous individuals have lost their life savings and immovable property during the internal war that ravaged …

Brown'S Legacy Then And Now: Race And Law School Admissions Debates Continue After Nearly 70 Years, Lauren M. Collins

Law Faculty Articles and Essays

Next month marks the 50th anniversary of the landmark desegregation case Brown v. Board of Education. Although this case represents a major victory in the battle for civil rights, the struggle against racism in education began some 20 years prior to Brown. During the 1930s and 1940s, at least seven African-American law school candidates aggressively challenged the unequal treatment of minority applicants in state courts, some eventually reaching the U.S. Supreme Court. Early successes in these cases lead to the more sweeping Brown decision, which then contributed to further law school admission policy reform. Discussion about the role of …

Who Was William Marbury?, David F. Forte

Law Faculty Articles and Essays

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part …

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Law Faculty Articles and Essays

The authors provide varying opinions on the Second Amendment.