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Congress Has Already Ruled In California V. Texas, John Aloysius Cogan Jr. 2020 University of Connecticut

Congress Has Already Ruled In California V. Texas, John Aloysius Cogan Jr.

Boston College Law Review

In California v. Texas, opponents of the Affordable Care Act (ACA) have asked the Supreme Court to invalidate the statute. Relying on a 2017 legislative change to the ACA’s individual mandate, the challengers argue that the mandate is unconstitutional. They then assert that the mandate is inseverable from the rest of the ACA, thus the entire statute must fall. Earlier this year, however, Congress said otherwise. Last March, Congress passed the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act. The two statutes amend and expand provisions of the ACA, thereby overriding Texas v ...


“Waiving” Goodbye To Medicaid As We Know It: Modern State Attempts To Transform Medicaid Programs Through Section 1115 Waivers, Chandler Gray 2020 Washington and Lee University School of Law

“Waiving” Goodbye To Medicaid As We Know It: Modern State Attempts To Transform Medicaid Programs Through Section 1115 Waivers, Chandler Gray

Washington and Lee Law Review Online

This Note explores recent state efforts to reshape their respective Medicaid programs through Section 1115 waivers. Specifically, this Note looks at states that wish to convert their Medicaid program to a block grant through Section 1115 waivers. Examining the lawfulness of these waivers requires analyzing the language and application of both the Medicaid Act and the Administrative Procedure Act. This Note argues that any use of Section 1115 waivers to implement a block grant program would be a violation of the Medicaid Act and thus unlawful. Further, federal approval of such programs would be deemed arbitrary and capricious. To justify ...


Notpetya, Not Warfare: Rethinking The Insurance War Exclusion In The Context Of International Cyberattacks, Katherine S. Wan 2020 University of Washington School of Law

Notpetya, Not Warfare: Rethinking The Insurance War Exclusion In The Context Of International Cyberattacks, Katherine S. Wan

Washington Law Review

When an insurer wants to avoid coverage of a specific type of loss, it must explicitly exclude the loss in its policy. The war exclusion is a typical exclusion found in insurance policies that excuses insurers from covering losses caused by war or warlike actions. Courts interpreting the exclusion have traditionally held that war must consist of hostilities between sovereign nations. Despite the rise of state-sponsored cyberattacks, the United States has been hesitant to officially declare war in response. Even still, insurers argue that their war exclusions should apply to these new cyber losses. Courts are now tasked with reanalyzing ...


The Irony Of Health Care’S Public Option, Allison K. Hoffman 2020 University of Pennsylvania Carey Law School

The Irony Of Health Care’S Public Option, Allison K. Hoffman

Faculty Scholarship at Penn Law

The idea of a public health insurance option is at least a half century old, but has not yet had its day in the limelight. This chapter explains why if that moment ever comes, health care’s public option will fall short of expectations that it will provide a differentiated, meaningful alternative to private health insurance and will spur health insurance competition.

Health care’s public option bubbled up in its best-known form in California in the early 2000s and got increasing mainstream attention in the lead up to the 2010 health reform, the Patient Protection and Affordable Care Act ...


Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker 2020 University of Pennsylvania Carey Law School

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

Faculty Scholarship at Penn Law

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work ...


Table Of Contents, Seattle University Law Review 2020 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


The New Regulatory Imperative For Insurance, Rick Swedloff 2020 Rutgers Law School

The New Regulatory Imperative For Insurance, Rick Swedloff

Boston College Law Review

This Article addresses emerging gaps in consumer protection. Insurers, like companies in other industries, are revolutionizing their practices with artificial intelligence and big data. Insurers are finding new ways to price risks and policies, tailor coverage, offer advice to purchasers, identify fraud, and sequence the payment of claims. These changes have subverted consumer protections built into current regulatory regimes, and regulators are struggling to adapt. This is not a niche problem. Insurance is a vital part of the U.S. economy: it rakes in over 1.2 trillion dollars in premiums a year; employs more than 2.7 million people ...


Which Law Is Supreme? The Interplay Between The New York Convention And The Mccarran-Ferguson Act, Brian A. Briz, César Mejía-Due?as 2020 University of Miami Law School

Which Law Is Supreme? The Interplay Between The New York Convention And The Mccarran-Ferguson Act, Brian A. Briz, César Mejía-Due?as

University of Miami Law Review

The McCarran-Ferguson Act was enacted in 1945 to safeguard the rights of the states to regulate the business of insurance. It provides that acts of Congress not specifically related to the business of insurance are superseded by state laws that regulate the business of insurance. In 1970, the United States ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Congress enacted Chapter 2 of the Federal Arbitration Act to implement the New York Convention. The New York Convention requires courts to recognize and enforce both private agreements to arbitrate and arbitration awards made ...


Saving Small Business From The Big Impact Of Data Breach: A Tiered Federal Approach To Data Protection Law, Nadia Udeshi 2020 Brooklyn Law School

Saving Small Business From The Big Impact Of Data Breach: A Tiered Federal Approach To Data Protection Law, Nadia Udeshi

Brooklyn Journal of Corporate, Financial & Commercial Law

Small businesses provide a significant positive impact on the American economy. However, the current fragmented federal and state data protection and breach notification legal scheme puts the viability of small businesses at risk. While the probability of data breaches occurring continues to increase, small businesses lack the financial and technological resources to contend with the various state and federal laws that impose different monetary penalties and remedial requirements in the event of such breaches. To preserve the viability of small businesses, Congress should enact a centralized, multi-tiered federal data protection and breach notification framework that preempts state laws, imposes minimum ...


Investigating Healthcare Fraud: Its Scope, Applicable Laws, And Regulations, Nicole Forbes Stowell, Carl Pacini, Nathan Wadlinger, Jaqueline M. Crain, Martina Schmidt 2020 William & Mary Law School

Investigating Healthcare Fraud: Its Scope, Applicable Laws, And Regulations, Nicole Forbes Stowell, Carl Pacini, Nathan Wadlinger, Jaqueline M. Crain, Martina Schmidt

William & Mary Business Law Review

Healthcare costs are not only an enormous strain on the U.S. economy but are expected to increase in the foreseeable future. Not surprisingly, clever fraudsters view the healthcare industry as a lucrative and attractive hotspot for illegal activity. Although federal and state governments have increased their funding and prosecution efforts relating to healthcare fraud, this fraud continues to be a major threat to the U.S. economy and every patient and consumer. The impact of healthcare fraud is substantial and far-reaching. Healthcare fraud in the U.S. affects not only the government, but also insurance companies, patients, healthcare providers ...


States Should Quickly Reform Unemployment Insurance, Brian Galle, David Gamage, Erin Scharff, Darien Shanske 2020 Georgetown University Law Center

States Should Quickly Reform Unemployment Insurance, Brian Galle, David Gamage, Erin Scharff, Darien Shanske

Articles by Maurer Faculty

COVID-19 is causing mass layoffs and related economic hardship, as well as budget crises for state and local governments.1 This article is part of Project SAFE (State Action in Fiscal Emergencies), an academic effort to help states weather the fiscal crisis by providing policy recommendations backed by research.2 This article will focus on how state governments should reform unemployment insurance (UI) eligibility and benefits and the taxes funding these programs.


Saints And Sinners: Is An Insurance Policy Required To Indemnify The Church For The Wrongful Acts Of Sexual Misconduct By Priests?, Cassidy J. Seamon 2020 Boston College Law School

Saints And Sinners: Is An Insurance Policy Required To Indemnify The Church For The Wrongful Acts Of Sexual Misconduct By Priests?, Cassidy J. Seamon

Boston College Law Review

On September 19, 2018, the United States Court of Appeals for the Second Circuit’s holding in Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Casualty Co. created two circuit splits regarding the interpretation of Interstate Fire and Casualty Co.’s insurance policy provisions, particularly in the context of indemnification for sexual abuse settlements. Hartford held that in insurance policy interpretation the presence of an occurrence is determined by a subjective test of expectation from the standpoint of the insured. The Second Circuit also held that the assault and battery exclusion excluded only those insureds that committed the assault and ...


Long-Term Care Policy After Covid-19 — Solving The Nursing Home Crisis, Rachel M. Werner, Allison K. Hoffman, Norma B. Coe 2020 University of Pennsylvania Perelman School of Medicine

Long-Term Care Policy After Covid-19 — Solving The Nursing Home Crisis, Rachel M. Werner, Allison K. Hoffman, Norma B. Coe

Faculty Scholarship at Penn Law

Nursing homes have been caught in the crosshairs of the coronavirus pandemic. As of early May 2020, Covid-19 had claimed the lives of more than 28,000 nursing home residents and staff in the United States. But U.S. nursing homes were unstable even before Covid-19 hit. The tragedy unfolding in nursing homes is the result of decades of neglect of long-term care policy.

Beyond the pandemic, we will have to transform the way we pay for and provide long-term care. First, Medicaid programs need to invest considerably more in care in all settings, including home-based settings as Medicaid shifts ...


Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman 2020 William & Mary Law School

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman

William & Mary Law Review

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district ...


Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin 2020 University of Maine School of Law

Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin

Maine Law Review

In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that ...


Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin 2020 University of Maine School of Law

Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin

Maine Law Review

In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that ...


Oh Captive! My Captive! New York’S Qui Tam Provision For Tax Is Validated In The Captive Insurance Context, Nicholas M. Coppola 2020 Boston College Law School

Oh Captive! My Captive! New York’S Qui Tam Provision For Tax Is Validated In The Captive Insurance Context, Nicholas M. Coppola

Boston College Law Review

On August 30, 2018, in Anonymous v. Anonymous, the Appellate Division of the New York Supreme Court, First Judicial Department held, for the first time, that a plaintiff-relator had sufficiently alleged that the defendants had violated the New York False Claims Act by using a captive insurance company for the sole purpose of evading taxes. The tax evasion scheme was brought to light by a former employee who utilized the New York False Claims Act’s qui tam provision. A qui tam provision allows a private citizen to stand in the shoes of the government when bringing an action. This ...


Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi 2020 Elon University

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review

No abstract provided.


Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence 2020 Penn State Dickinson Law

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review

No abstract provided.


Telemedicine And Malpractice: Creating Uniformity At The National Level, Tyler D. Wolf 2020 William & Mary Law School

Telemedicine And Malpractice: Creating Uniformity At The National Level, Tyler D. Wolf

William & Mary Law Review

Picture this: an elderly gentleman living alone, isolated in a rural, midwestern locale. One day, this elderly gentleman awakes to find a distinct rash forming on his chest. The nearest doctor capable of performing an examination is located over a hundred miles away, and this man has not driven more than ten miles in twenty years. Shambling into his living room, the elderly man logs onto his computer and begins typing. Within twenty minutes he is videoconferencing with a doctor who examines the rash remotely and makes a diagnosis.

Through advances in telemedicine, the scenario described above is becoming an ...


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