Reclaiming Notice and Comment

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here

Matthew Cortland and Karen Tani –

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: “industry insiders and their highly-paid allies” produce “an avalanche of detailed, well-funded, well-credentialed comments,” Warren observed, which administrators must consider if the eventual rulemaking is to survive judicial review.

Fast forward three years, into an administration that has besieged the administrative state—questioning its legitimacy, demoralizing its personnel, slowing the pace of regulation, and  withdrawing from important regulatory realms. In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on?  Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.

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Medicare for All: A Leap into the Known?

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Nathan Cortez – Screen Shot 2019-07-22 at 8.33.16 AM

The Affordable Care Act of 2010 was the most significant health legislation since Congress created Medicare and Medicaid in 1965, breaking a half-century of health policy incrementalism. But thanks to the Senate, the final bill failed to include a “public option.” And thanks to the Supreme Court, many states rejected Medicaid expansion. Ultimately, the ACA preserved private insurance as the main source of coverage, rendering the act much more incremental than originally envisioned.

Almost a decade later, we are seeing more ambitious reform ideas like “Medicare for All” which until very recently was a political nonstarter. My contribution to this symposium argues not only that some version of Medicare for All is necessary, but also that it may not be as radical as critics claim.

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Medicare for All and Medicare for America: What Are We Fighting Over? Part II

This post is part of our symposium on Medicare for All. You can find all the posts in the series here. You can view Part I of this article here.

Christina S. Ho – 

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In yesterday’s post, I evaluated Medicare for All and considered some of the implications of a single-payer system. Today’s post will assess the Medicare for America bill, which, by contrast, is a public option.  This label may not appear obvious, and is even disputed by some, since the bill sunsets the Affordable Care Act (ACA) exchanges and individual private health insurance.  Instead, it enrolls the majority of Americans in a public Medicare plan with benefits close to what Medicare for All would offer.

While the Medicare for America bill is arranged with great promise and enormous care, its real significance lies not in this snapshot description but in the distributional and politico-historical dynamics that its opt-out structure unleashes over time.

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Medicare for All and Medicare for America: What Are We Fighting Over? Part I

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Christina S. Ho – 

The early contours of the health care debate have featured a loose divide between those favoring so-called “single-payer Medicare for All,” and those who propose some kind of “public option.”

Screen Shot 2019-07-22 at 8.33.16 AMTo drill down to what’s really at stake, I looked at the leading and most detailed proposals representing these two basic outlooks.  To understand “single-payer Medicare for All,” I read the “Medicare for All Act of 2019,” H.R. 1384 introduced by Reps. Pramila Jayapal and Debbie Dingell, which largely tracks the Senate counterpart introduced by Bernie Sanders.  I also looked at the most ambitious and developed “public option” proposal, the “Medicare for America Act of 2019,” H.R. 2452, sponsored by Reps. Rosa DeLauro and Jan Schakowsky and drawn in part from the Center for American Progress’ (CAP) Medicare Extra for All plan.

I argue that there may not be as much of a difference between the two plans as the Presidential primary camps will be motivated to portray, and I want to lay out why – with the caveat that at this stage of the debate, no one’s views should be immune from revision, least of all mine.

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Medicare for All as a Democratic Movement

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Allison K. Hoffman – 

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Medicare for All (MFA) has become the symbol of a larger, brewing movement that is attempting to bring major change to how we pay for and regulate health care in the United States. Even if MFA never becomes law, the conversation around it is building popular support for significant reforms and is creating fissures in the decades-old market-based approach to health care financing and regulation—and in the justification that this approach promotes choice.

Many Americans are well aware that our current health care system is failing them, as nearly 27.4 million people (14 percent of adults) remain uninsured, even after the Patient Protection and Affordable Care Act (ACA), and even those with insurance are struggling to pay for the care they need. The U.S. spends twice as much per capita on health care than the average OECD nation and has worse outcomes on critical measures, like life expectancy and infant mortality.

Over the past three decades, the primary policy solution to the mismatch between high spending and poor outcomes has been to turn to consumerism and market competition for a fix. The underlying theory is that if people have options—options for health plans, hospitals, prescription drugs, providers, and so on—they will choose the higher-value options. In turn, competitors will in theory produce higher-value options to win more customers.

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The dark side of the ‘data-driven’

Frank Pasquale –

In her fascinating new book Automating Inequality, Virginia Eubanks recounts that the first “big data” set in the United States “was the Eugenics Records Office in Cold Spring Harbor. It was the public arm of the eugenics movement.” While the systematic collection of data has underpinned many important initiatives, it also has a dark side. Expect to see that dark side re-emerge with a vengeance in the next few years, as many American states intensify their surveillance of already disadvantaged groups.

Are there forms of knowledge that the state—or even university researchers—should not aspire to attain? Privacy law is meant to empower us with zones of thought and experience that no one can access without permission. Another branch of law, governing human subjects research, ensures that experimenters obtain consent before gathering data about individuals. As a member of the Council on Big Data, Ethics, and Society, I have thought and written about the types of data corporations and states should be able to gather about individuals, and the power relationships that data gathering entailed.benthams-panopticon-copy.jpg

Like disputes over free expression, the politics of data gathering for social science research is becoming a fraught area for progressives. For some, knowledge is an intrinsic good. Research of all stripes is a way of better understanding ourselves and our world. But there is another, more Foucauldian perspective: Where does the burden of scrutiny fall? What complicity does a social scientist have with the regime that provides data? The construction of what counts as “success” or “failure” in a given study is a highly political decision. A particular focus on some data or metrics comes at the cost of an exclusion or devaluation of others (akin to the “jurispathic” judgments Robert Cover recognized). All these questions will be critical as America’s laboratories (or meth labs) of democracy concoct innovative ways of denying health care to the poor, and ask social scientists to study “what works” in health policy.

Evaluating the Costs of Program Evaluation

The Trump Administration recently announced an intent to grant states permission to condition Medicaid benefits on work requirements (via Section 1115 of the Social Security Act). Former CMS Administrator Andy Slavitt immediately condemned the move. Activists were even more outraged. Journalists chronicled the many ways the work requirements were likely to worsen health outcomes, while burdening the vulnerable with paperwork and bureaucratic hurdles. New state “flexibility” will translate into cruel cutbacks for the disabled (who now may be denied transportation benefits).   Continue reading

Why Civil Disobedience, and Why Now?

Amy Kapczynski – 

On December 5th, I joined hundreds of people from 32 states in Washington D.C to protest the Republican tax bill.  We packed the hallways outside of the offices of seven key members of Congress, and mic-checked one another so that people’s stories about the bill’s devastating consequences could be heard.   A group of us – around 130 in total – refused to leave when the Capitol police arrived, and were arrested.

It was in many ways not an unusual act – the next day, more than 200 people were arrested in D.C. demanding a Clean Dream Act.  I’m heading back to D.C. today for another protest, joining hundreds more in a last ditch effort to head off the tax bill.*

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Many people have thanked me for what I did two weeks ago.  Perhaps it’s because I’m a law professor.  Or perhaps it’s because so many of us are wondering what more we can – or must – do to save our democracy and bring about a more equal society.

Confrontational protest and civil disobedience are an indispensable part of the answer. Here are five thoughts on why I decided to participate in the protest, and what it means to me, and what I hope it might mean to some of you.   Continue reading

The Epicycles of Health Care Market Design: Time for a Paradigm Shift in Health Policy

Frank Pasquale – 

Back in June, I attended the annual conference of health law professors held by the ASLME. This conference is a real intellectual feast for anyone interested in political economy. National experts describe the latest developments in the Affordable Care Act’s exchange marketplaces. Antitrust scholars consider the proper balance between delivery system integration and competition in accountable care organizations. The role of the state in structuring economic activity is critical to nearly every panel on insurance markets, licensure, and access to care.

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But there was very little buzz about what has become one of the hottest topics in progressive health policy in 2017: state efforts to develop single-payer health care systems or public options (like a Medicaid buy-in). Politicians and activists appear to be leading this charge, pushing proposals in California, Nevada, and New York. They have generated a lot of enthusiasm, and they will get more attention if the GOP manages to repeal the individual mandate and further damage insurance markets. Even self-described neoliberal Matt Yglesias has called on experts to further develop ideas here. And yet the academy seems slow off the mark. What explains this tardiness?

I think part of the problem is the sheer complexity—and thus intellectual challenge—of market design in a neoliberal era. Sarah Kliff recently eulogized the great health care economist Uwe Reinhardt by memorializing the “joy he always took in trying to understand the maddening, baffling inner-workings of the American health care system.” “Joy” seems like an odd emotion to express, upon encountering the complexities of ERISA, MedPAC, MACRA, MIPS, and the rest of the health care finance alphabet soup. But once you teach in these areas, the incrementalism of the well-informed is hard to shake. Continue reading

Your Money or Your Life?

Amy Kapczynski – 

High drug prices are a major problem in the United States. In the Washington Post today, Aaron Kesselheim and I have an op-ed about what President Trump could do – immediately – to lower drug prices, if he had any intention of following through on all of those campaign promises and tweets. 649816939_1280x720(We also explain why his nomination of Alex Azar to head HHS is a clear sign that he will do none of this.)

Here I wanted to say more about the stakes of the drug pricing problem, and about one option we describe – a little known patent “eminent domain” power that could be a powerful tool to lower drug prices.

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Why “Intellectual Property” Law?

Amy Kapczynski – 

When I entered law school in 1999, I was primarily interested in two things: HIV/AIDS, and critical approaches to human rights.  I was also young and queer, and Bowers v. Hardwick was the law of the land.  Sodomy was illegal in many states, and so, it seemed, was I.  So, I was also deeply interested in the law of sexuality.

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Médecins Sans Frontières (MSF) poster

I ended up teaching and writing about intellectual property (IP) law.  My 1L self would not have believed it. (I even have the picture to prove it).

As a prelude to a series of future posts about my work in this field, I wanted to describe how I came to IP law – or rather, how it came to me.  If you aren’t sure what IP means or why it is important to social justice today, this post is for you.  The same is true if you are wondering how someone interested in law and political economy develops a research agenda, and why someone might choose patent law as a key part of it. Continue reading