Category Archives: Health
New Article: Mel Cousins, Equal Protection: Immigrants’ Access to Healthcare and Welfare Benefits, 12 Hastings Race & Poverty L.J. 21 (2015).
New Article: “Two Americas in Healthcare: Federalism and Wars over Poverty from the New Deal-Great Society to Obamacare”
New Article: Tomiko Brown-Nagin, Two Americas in Healthcare: Federalism and Wars over Poverty from the New Deal-Great Society to Obamacare, 62 Drake L. Rev. 981 (2014).
New Article: Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014). Abstract below:
Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and policy. This Article labels, describes, and furthers a nascent “health justice” movement by examining what it means to view health law as an instrument of social justice. Drawing on the experiences of the reproductive justice, environmental justice, and food justice movements, and on the writings of political philosophers and ethicists on health justice, I propose that health justice offers an alternative to the market competition and patient rights paradigms that currently dominate health law scholarship, advocacy, and reform. I then examine the role of law in reducing health disparities through the health justice lens. I argue that the nascent health justice framework suggests three commitments for the use of law to reduce health disparities. First, to a broader inquiry that views access to health care as one among many social determinants of health deserving of public attention and resources. Second, to probing inquiry into the effects of class, racial, and other forms of social and cultural bias on the design and implementation of measures to reduce health disparities. And third, to collective action grounded in community engagement and participatory parity. In exploring these commitments, I highlight tensions within the social justice framework and between the social justice framework and the nascent health justice movement. These tensions illustrate, rather than undermine, the power of viewing health law as social justice. They raise important questions that should prompt more fruitful and rigorous thinking within health law activism and scholarship and with regard to the relationships between law and social justice more broadly.
New Article: “Transformations in Health Law Practice: The Intersections of Changes in Healthcare and Legal Workplaces”
New Article: Louise G. Trubek, Barbara J. Zabawa & Paula Galowitz, Transformations in Health Law Practice: The Intersections of Changes in Healthcare and Legal Workplaces, forthcoming Indiana Law Review 2014. Abstract below:
The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a “hot” area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites are discussed: in house offices, corporate law firms and medical legal partnerships. The analysis shows that these practices are adapting to the health care context by locating new clients, increased collaboration with clients and medical providers, developing business strategies and linking with other legal service providers. The lawyers are reconstructing professional identities as they create these practices, using their expertise and working as collaborators. Organizations of similar practitioners support the development of these identities. The paper discusses the three arenas where lawyers can learn the necessary competencies for these transformations in health law: law schools, inter-professional education and communities of practice.
New Article: “The Modernization of American Public Law: Health Care Reform and Popular Constitutionalism”
New Article: David A. Super, The Modernization of American Public Law: Health Care Reform and Popular Constitutionalism, 66 Stan. L. Rev. 873 (2014). Abstract below:
The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by National Federation of Independent Business v. Sebelius, the ACA’s structural changes to public law likely will prove far more important should they become entrenched. The struggle over the ACA has triggered the kind of “constitutional moment” that has largely replaced Article V’s formal amendment procedure since the Prohibition fiasco. The Court participates in this process, but the definitive and enduring character of these constitutional moments’ outcomes springs from broad popular engagement.
Despite the Court’s ruling and the outcome of the 2012 elections, the battle over whether to implement or shelve the ACA will continue unabated, both federally and in the states, until We the People render a clear decision. Whether the ACA survives or fails will determine the basic principles that guide the development of federalism, social insurance, tax policy, and privatization for decades to come.
In each of these areas, the New Deal bequeathed us a delicate accommodation between traditionalist social values and modernizing norms of economic efficiency and interest group liberalism. This balance has come under increasing stress, with individual laws rejecting tradition far more emphatically than the New Deal did. But absent broad popular engagement, no definitive new principles could be established. The ACA’s entrenchment would elevate technocratic norms across public law, the first change of our fundamental law since the civil rights revolution. The ACA’s failure would rejuvenate individualistic, moralistic, pre-New Deal norms and allow opponents to attempt a counterrevolution against technocracy.