Some Broad Principles and Specific Suggestions about the ACA Repeal and Replace Measures

Health insurance policy is complicated.  I know this, my Insurance Law students know this, and, I daresay, most of our politicians know this.  Rushing to action – either in terms of quickly passing health insurance legislation or quickly passing judgment on one’s political opponents  ­–  is especially unwise in this area.

Strongarmed by President Trump, the House of Representatives has begun debate on the American Health Care Act, the Republican plan to repeal the Affordable Care Act.  President Obama’s ACA has increased health insurance coverage for many, but at prices too high for others to afford.  Although Republicans have a majority of both the House and the Senate, President Trump’s AHCA must balance more conservatives’ desire to eliminate ACA-style regulations that reduce competition in the insurance marketplace with moderates’ desire to keep certain provisions, like the requirement that insurers offer certain essential health benefits, intact.  Essential health benefits mandates ensure that everyone has health insurance coverage for their basic needs and prevents insurers from creating policies that cover far less than consumers expect, but they drive up health insurance costs, undermine choice for those who want a more limited plan, and reduce competition among insurers.

Deciding how to fix what is an increasingly broken health care system (with health insurance coverage being only one facet of the problem), requires an examination of both broad principles and specific proposals.  Below, I offer a little of both.

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Judge Gorsuch’s Comments About Maternity Leave, the Academic Enterprise, and Sexism in the Classroom

There is a new reason for partisan bickering, and perhaps a reason for legitimate concern, at Tenth Circuit Judge Neil Gorsuch’s already fraught Supreme Court confirmation hearings.  A former student wrote the Senate Judiciary Committee to allege that Judge Gorsuch informed her ethics class that “many” female attorneys manipulate maternity leave by taking time off and then departing their firms once they have used the firm’s maternity leave benefits.  These allegations are concerning, not just because they may evince biased attitudes about women that are unacceptable in a jurist.  These allegations, and the responses to them, also evince an increasing unwillingness by students to grapple with controversial, sensitive legal and intellectual questions that will inevitably offend someone’s sensibilities.

I do not know what Judge Gorsuch actually said in last April’s legal ethics class.  There are accounts that verify the former student’s allegations, but there is also a letter by another former student refuting the student’s perception of the incident.  I can, however, contribute to the conversation on this issue by adding my own experience, as a professor and as a woman, about the challenges presented by the law school classroom environment.

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A Guest Speaker in My Insurance Class Reaffirms the Importance of Teaching and Blogging in a Nonpartisan Way

Today, in Insurance class, I received a reminder of how critical it is that law professors approach their craft of teaching and writing in a nonpartisan way.  As a First Amendment scholar, my priors were already set to fostering respectful disagreement in my classes, but it is all too easy, without constant vigilance, to teach classes and present legal arguments in an ideological way.  Today’s guest speaker in my Insurance class reminded me that free speech can and does work, if we, especially academics, commit to the enterprise as honest brokers.

My guest speaker, who Skyped into class, represents maritime insurance companies in a litigation, arbitration, and appellate practice.  He regaled my students with vivid stories about the complexities of maritime law and the foibles of state and federal courts.  Ever since the Supreme Court, in Wilburn Boat v. Fireman’s Fund Insurance, 348 U.S. 310 (1955), ruled that not all maritime insurance disputes are governed by federal admiralty law, courts now decide whether to apply state or federal law to maritime insurance disputes.  My guest speaker explained that courts often look beyond the choice of law question to the ultimate result in a given case to decide which law applies, generally to favor policyholders over insurance companies.  Indeed, my guest speaker told my class that his father, who started their insurance practice, was once denied the ability to speak on behalf of his client, by a Florida state-court judge who said something to the effect of, “No slick Jewish lawyer in Gucci loafers is going to come into my court and tell me how to rule.”

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What’s the Deal with SCOTUS, the Supremacy Clause, and Insurance Subrogation? (A Series)

Part One:  The Basics

Often, the most technical cases are the most fun.  When I was clerking, my co-clerks amiably mocked the fact that my first case was a contract dispute between a shopping center and its tenant (“How’s Minges Creek?” they would chide).  I loved that case.

You may never have considered your view on whether the Federal Employees Health Benefits Act (FEHBA) pre-empts state laws that bar insurance carriers from seeking subrogation.  However, considering this issue promises to be a good time. Cases involving abstruse, interlocking statutes or technical contractual language require judges and lawyers to puzzle through logical challenges in order to reach a coherent, satisfying solution.  The difficulty of reconciling analytical inconsistencies and assimilating technical knowledge overshadows any obvious political valence.  The case becomes more about making the parts fit together within the statutory parameters.  Courts must provide workable conceptual principles for future cases, which will present vastly different policy issues.  So it is with insurance subrogation and the Supremacy Clause.

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Oral Argument in Packingham v. North Carolina: Justice by Justice

Earlier this week, the Supreme Court heard oral argument in Packingham v. North Carolina, a case about whether North Carolina can make it a crime for registered sex offenders to access commercial social networking websites.  Packingham v. North Carolina is an interesting case with significant First Amendment implications.  The Court will decide not only what level of First Amendment scrutiny applies to “access” restrictions on speech, but will have to contend with the question of whether speech can be restricted as a means of preventing crimes.

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What the Supreme Court’s First Amendment Cases Show About Trump’s Relationship to the Media

President Donald Trump is not shy about his distaste for the press, and even for mainstream media entertainment.  President Trump recently characterized the media as “the enemy of the American people.”  He believes the media slants stories unfairly, uses quotes out of context, and even fabricates facts, to serve a political agenda.

The media has not taken these criticisms lightly.  Many journalists and politicians have spoken about the historical connection between media disrespect and authoritarian regimes.  To truly understand the import of Trump’s comments for this country, however, we need to examine the Supreme Court’s First Amendment jurisprudence relating to the media.  The Supreme Court protects the First Amendment rights of a fallible media – a media that is factually incorrect, misleading, and crass —  because the media is a necessary instrument to robust public discourse and informed democratic participation.  President Trump’s criticisms turn First Amendment jurisprudence on its head.  The media deserves deference from the government despite its flaws; the government does not deserve deference because of the media’s flaws.   
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An Insurance Amputation Case With a Pure Legal Issue

My students in Insurance described feeling saturated by political debates, and I sympathize.  Today, I won’t be blogging about a current crisis or pressing First Amendment lawsuit.  Instead, I want to demonstrate how thinking about a purer legal issue – arising in an Insurance case about whether a particular contract term should be void as a matter of public policy –gives us perspective on more abstract questions involving freedom to contract and the scope of the judicial role in shaping public policy.  Contemplating these questions outside of our fraught political climate may be helpful in thinking through current issues.

Contracts are generally enforced as written, unless their terms violate a state’s specific public policy, either codified by the legislature or articulated by judges.  “Public policy” is why courts will not enforce the terms of a murder-for-hire contract, or an organ-sale contract, even though the parties freely bound themselves by the contract’s terms.  Those are easier cases.  Cases involving public policies not specifically covered by statutory prohibitions are much more difficult and complex.  How much power one believes a judge should possess to nullify an insurance contract depends on one’s views about autonomy, insurers and their motives, and the role of judges versus private parties in ordering society.

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