The Beginning of Health Reform

On March 23, 2010, President Obama made history by signing into law the Patient Protection and Affordable Care Act, a landmark statute that aims to fundamentally reform virtually all aspects of the nation’s health care system. The health reform law is fairly viewed as the most sweeping social policy legislation since Lyndon Johnson’s Great Society initiatives.

There are many specific goals of the statute, including expanding health insurance coverage, increasing access to health care services, improving health care quality, enhancing the value of care received, eliminating racial and ethnic health disparities, strengthening the public health infrastructure, expanding and diversifying the health care workforce, and encouraging consumer and patient wellness at home and at work. More fundamentally, however, the goal of health reform is to restructure the current health care system into one that operates more fairly, more efficiently, and with more accountability on the part of the many different stakeholders involved.

Although passage of the law was 14 months in the making, the statute itself is merely the first step. Next comes the truly challenging part: translating the enormous (and enormously complex) law into a transformed health system. 

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Reconciling Competing Definitions of Death

When does life end?  The question has important consequences for many areas of law, from criminal law to trusts and estates to taxes.  The law has traditionally associated death with a cessation of cardiac and respiratory functioning, but advances in medical technology now mean that hearts and lungs can be kept working artificially for long periods of time.  As a result, U.S. law has generally shifted over the past half-century to a new definition of death that turns on whether there has been an irreversible loss of brain functioning.  However, as 3L Rachel Delaney explains in a new paper on SSRN, Orthodox Jews have continued to adhere to the old cardiac standard as a matter of religious law.  This creates a potential for conflict and the possibility of further emotional harm for family members at a time when they are already dealing with the loss of a loved one — for instance, if a brain-dead patient were withdrawn from life support at a time when the patient was not actually dead according  to the family’s deeply held religious beliefs.

Rachel thus argues that the law should recognize a religious exception to the brain-death standard.  Indeed, she contends that such an exception may be required by the Free Exercise Clause.

Rachel’s article is entitled “Defining Death: Why All Fifty States Should Adopt the Uniform Definition of Death Act with a Religious Exception.”  The abstract appears after the jump. 

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Gulf Oil Disaster — Lessons in Torts and Bailouts

The oil rig explosion that killed eleven workers and causes the daily flow of an estimated 200,000 gallons of oil into the Gulf of Mexico presents a gut check moment on tort policy.  A lot of harm has been and will be caused by this catastrophe, and somebody will bear the cost of that harm. Should it be the responsible parties? the victims? the taxpayers?

American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.

These uncompensated losses often hit the taxpayers as well as the victim. 

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