Sep 8, 2022 Amy MonahanHealth Law
Matthew B. Lawrence,
Medicare “Bankruptcy”, 63
B.C.L. Rev. __ (forthcoming 2022), Oct. 7, 2021 draft available at
SSRN.
Medicare’s hospital insurance trust fund is projected to reach insolvency by 2026. While looming insolvency is, in a sense, nothing new for Medicare – the hospital trust fund has been within six years of insolvency five times in the last five decades – it has never been closer to insolvency than it is now. In response to prior threats of Medicare insolvency, Congress has always acted to avoid such crises. Yet, as Professor Lawrence explains in Medicare “Bankruptcy”, today’s Congress may be unwilling or unable to do anything more than a short-term fix at best. At worst, Washington’s extreme polarization may create a situation where even politically sacred Medicare runs out of funds.
Medicare “Bankruptcy” makes two key contributions to the literature on Medicare reform. First, it provides a detailed examination of the many legal and practical issues that would be raised by Medicare trust fund insolvency. Second, it proposes a more rational approach to periodic threats of Medicare insolvency than simply crisis/short-term patch/repeat. By setting out the rules for Medicare bankruptcy in law in advance, Professor Lawrence argues, insolvency will be less harmful, less likely, and more likely to promote compromise and cost control. Continue reading "Understanding (and Avoiding) Medicare Insolvency"
Sep 7, 2022 Dara E. PurvisFamily Law
Michael J. Higdon,
Common Law Divorce, __
Ala. L. Rev. __ (forthcoming 2022), available at
SSRN.
Every semester I teach family law, I spend a few minutes contradicting my students’ instincts about common law marriage. Most students have a vague idea of common law marriage and joke about cohabiting friends being common law married. A regular part of my introduction of common law marriage is thus to explain that it is increasingly uncommon, discuss the important functions that the formalities of marriage serve, and emphasize that even in states that do allow the creation of new common law marriages, those spouses must seek a formal divorce should their relationship end. This last requirement–that all divorces be formalized–seemed so obvious a principle that I had never questioned it. That is, I had never questioned it until I read Michael Higdon’s article Common Law Divorce.
Professor Higdon’s main focus is on a small but significant group of married couples who have decided to end their relationship but who cannot easily or practically access divorce. This population, comprising about fifteen percent of separations, informally and permanently separate without ever legally divorcing. Professor Higdon outlines a number of factors that may be in play: lack of resources to access the court system, lower likelihood of remarriage and thus lower incentives to finalize their separation through divorce, and difficulty affording and navigating the formalities of divorce without legal advice. Such couples tend to be members of groups that have difficulty accessing the legal system in other contexts: disproportionately nonwhite and poor. Professor Higdon focuses on this group to argue that easier, even informal, methods of ending a marriage not only serve the interests of the people, but also the interests of the state. Continue reading "Why Not Common Law Divorce?"
Sep 6, 2022 Jennifer ChaconCriminal Law
The use of electronic surveillance and dataveillance in policing are topics of ever-increasing interest. In the pages of JOTWELL, Chris Slobogin recently provided a helpful introduction to Sarah Brayne’s Predict and Surveil, which represents an important contribution to this field of study. In this post, I want to celebrate Ana Muñiz’s contribution to this growing body of work: her latest book, Borderland Circuitry: Immigration Surveillance in the United States and Beyond.
While Brayne focuses on the LAPD, Muñiz initially trains her scholarly gaze on the practices of the Department of Homeland Security (DHS), and particularly Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). She explores the surveillance and information sharing practices that these agencies pursue as part of their efforts to identify and remove alleged gang members and “criminal aliens,” which is the term the federal government uses to describe “a noncitizen who has had contact with the US criminal justice system.” (P. 15.) Of course, her research quickly extends right back to agencies like the LAPD and other law enforcement agencies, whose labeling and surveillance practices shape, and are shaped by, federal immigration enforcement prerogatives. Continue reading "Border Wounds"
Sep 5, 2022 Tom C.W. LinCorporate Law
Ofer Eldar & Gabriel Rauterberg,
Is Corporate Law Nonpartisan?, __
Wis. L. Rev. __ (forthcoming 2023), available at
SSRN.
America is beset with partisan politics. The brinkmanship, dysfunction, and policies that emanate from political partisanship touch so much of American life, law, and society. Increasingly and prominently, businesses have been drawn into partisan debates on issues like gender equality, gun violence, reproductive rights, racial justice, and climate change. Many executives, investors, employees, activists, and other stakeholders now expect American businesses to play an active role in addressing many of society’s toughest challenges in the face of political institutions that too often seem too partisan to meaningfully confront those challenges. In response to a new wave of corporate social activism, national and local political leaders have both admonished and applauded businesses for their attempts to address social issues.
This new wave of corporate social activism has prompted many important questions and reexaminations of core issues at the critical intersection of business, law, and politics. One such foundational question is political partisanship’s impact on corporate law.
In a forthcoming article, Is Corporate Law Nonpartisan?, Professors Ofer Eldar and Gabriel Rauterberg offer an in-depth, fair minded examination of partisanship’s effects on corporate law and corporate lawmaking. Through a thoughtful study, that carefully weaves quantitative and qualitive analyses, the article offers a persuasive explanation of how partisanship may have contributed to key differences in state corporate laws and how safeguards against partisanship have contributed to Delaware’s sustained dominance in the competition for corporate charters. Continue reading "Partisanship and Corporate Law"
