Making Federalism Work: Lessons from Health Care for the Green New Deal

Making Federalism Work: Lessons from Health Care for the Green New Deal

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Making Federalism Work: Lessons from Health Care for the Green New Deal

For decades, federalism had a bad reputation. It often was perceived as little more than a cover for state resistance to civil rights and other social justice reforms. More recently, however, progressive scholars have argued that federalism can meaningfully advance nationalist ends. According to these scholars, federalism allows for spaces in which norms can be contested, developed, and extended. This new strain of scholarship also recognizes, however, that these federalist structures can still shield national-level reforms from reaching all Americans. Many see such gaps as a regrettable but unavoidable feature of our federalist system.

But to embrace federalism as an important component of the U.S. legal architecture does not mean that one must abandon efforts to craft effective federalist programs. To the contrary, this Article argues that the scholarly coalescence around the virtues of federalism raises a pressing new question: are there ways to structure federalist programs that help to build constituencies and participation over time? That is, for those who accept federalism but are committed to expanding essential services and goods to all Americans, how can policymakers best make federalism work?

To answer this question, the Article analyzes an important case study in modern federalism: the Affordable Care Act. We argue that the ACA experience offers three critical lessons about how to structure modern, federalist social justice legislation that both respects states as partners and builds effectively toward national norms.

These lessons involve (1) the new importance of federal program “backstops,” (2) the need to create unusual coalitions, and (3) the counterintuitive benefits of building upon entrenched statutory pro-
grams. These lessons from the ACA should, we assert, help architects and scholars of new legislative efforts better understand how to make federalism work to achieve social justice ends today. To illustrate how, the Article concludes by applying these lessons to the Green New Deal—the vibrant new legislative effort to jointly tackle climate change and inequality.

Jesse M. Cross*

Shelley Welton**

*Assistant Professor, University of South Carolina School of Law

**Associate Professor, University of South Carolina School of Law. The authors would
like to thank Morgan Hylton for outstanding research assistance, as well as the editors at
the University of Richmond Law Review for their excellent work.

Rules and Standards in Justice Scalia’s Fourth Amendment

Rules and Standards in Justice Scalia’s Fourth Amendment

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Introduction

When looking at Justice Scalia’s approach to the Fourth Amendment, most would say he was an originalist and a textualist. Justice Scalia himself would like to explain, “I’m an originalist and a textualist, not a nut.” Although originalism and textualism were often prevalent in his Fourth Amendment decisions, even more important to his decision-making was his disdain for judicial activism. To limit judicial discretion, Justice Scalia frequently opted to impose bright-line rules rather than vague standards. This is apparent not only within his jurisprudence as a whole, but also specifically in his Fourth Amendment decisions.

This Article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Rules are binding directives that leave little room for considering the specific facts of any given situation. Critics argue that they tend to be over- or under-inclusive, but the value of rules is that by taking power away from the decisionmaker, they limit judicial discretion. Further, some argue that rules promote democracy because they properly leave the power to make decisions based on politics or value judgments to the legislature. On the flip side, proponents of standards argue that standards produce judgments that are less arbitrary and more substantively fair because they allow decisionmakers to consider all of the relevant facts and circumstances of the case. 

 

Robert M. Bloom*

Eliza S. Walker**

* Professor of Law and Dean’s Distinguished Scholar, Boston College Law School.

**J.D., 2020, Boston College Law School; Law Clerk, Massachusetts Supreme Judicial Court.

Acknowledgments

Acknowledgments

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Acknowledgments

Each year, the Editor-in-Chief of the University of Richmond Law Review authors Acknowledgments to be included in their volume’s final publication. Typically in these remarks, the Editor-inChief offers their gratitude to those who have made the past year’s work possible, highlights the ups and downs that have marked their time in the role, and reflects on lessons learned after publishing a full volume of distinguished legal scholarship. In keeping with tradition, I will leave space for those matters here, as there is plenty to reflect upon and plenty to be grateful for. These Acknowledgments, however, would not be complete without due consideration of the extraordinary and historic year that has enveloped Volume 55 of our Law Review.

 A year spent as a member of a law review—any law review—is a considerable undertaking, regardless whether spent as a second year or third-year editor, irrespective of the particular position held. Even in the most conventional of times, the hours spent poring over articles, the grind of learning the intricacies of the editorial process, and the effort of collaborating with peers combine to yield a uniquely challenging, if hopefully rewarding, experience. Such was the case well before the onset of the COVID-19 pandemic. Since March of 2020, a year unlike any other in the sixty-three year history of our publication has unfolded, and with it has come no shortage of tests.

J. Lincoln WolfeEditor-In-Chief

 

Funeral Poverty

Funeral Poverty

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Introduction

Death is an expensive proposition. The economics of life do not end with death, and putting the deceased to rest carries (often unexpected) funerary expenses for cremations, funerals, burials, and/or memorials. In 2019, the median cost of an adult funeral with viewing and burial exceeded $9000. This number is particularly stark given that four out of ten Americans would have difficulty covering an unexpected $400 expense, and 12% would be un- able to pay the unexpected $400 by any means. Although there are ways in which the consumer may mitigate cost, planning for a funeral or burial is expensive and complicated, and the consumer is frequently inexperienced and vulnerable.

For the average consumer, funerary expenses will be the third-largest category of expense incurred over a lifetime—and notably, this category of expenditure is often managed during an emotion- ally fraught time when the consumer may be cognitively impaired. A grief-stricken consumer is not a rational actor. This consumer is not price sensitive and is generally aware of only those prices and options made available by the first funeral home consulted. And though pre-need planning and prepayment would facilitate informed decision-making and purposeful saving, the options for pre-need prepayment are severely limited, with disadvantages that frequently outweigh benefits.

It is important to consider the way in which unremarkable, mundane, unconsidered expenses perpetuate inequality and contribute to intergenerational cycles of poverty, and this issue has been heretofore relatively unexplored by the legal academy in the context of death service expenses.10 And though the topic of funeral poverty is rarely discussed in the United States, it has been a trending is- sue in many other parts of the world. In the United Kingdom, it was raised before Parliament.13 In South Africa, economists found that the households studied between 2003 and 2005 spent an average of a year’s income (measured at median per capita African income) for an adult’s funeral, leaving poor households in a state of extreme hardship. Scotland implemented a funeral expense assistance program with eligibility for those with low incomes, with an average subsidy of £1372 in 2017/2018.15 And notably, the Swedish have preempted the need to have any conversation: all residents are entitled to burial services and charged a mandatory scaled fee for expenses on the resident’s annual tax statement, with financial assistance (if needed) from the municipal social services office.

In the United States, we are extraordinarily distanced from death and have largely moved the process from home to institution. After the Great Depression and World War II, life expectancy increased and death became taboo. Modern society shifted death out of sight and mind, railing against aging, whisking the dying to hospitals, removing the deceased to funeral homes, and purchasing meat for consumption. This sheltering from the organic and necessary end of the life cycle has created a “death illiteracy” that renders the consumer particularly vulnerable to foolish decision-making and exploitation while planning a funeral and/or burial. Important conversations about end-of-life planning, the responsibility to pay for one’s own funerary expenses, the notion of planning for inexpensive, simpler options, and meaningfully addressing funeral poverty are all ideas generally without traction in the United States. The consumer cloaks himself in the illusion of immortality and end-of-life planning threatens that illusion.

This Article makes a unique contribution to the literature by drawing attention to the financial burden of death service being shouldered by those who are “relatively poor,” or those for whom everyday life may be a financial struggle. The thesis is equal parts positive, normative, descriptive, and prescriptive: it is imperative that options be made available to transition human remains in a way that does not exacerbate cycles of poverty and allows for the living to preserve dignity. This need calls for important changes to existing legal structures, including modernization of consumer protection regulation, change to laws regulating the death service industry, and recharacterization of expenses for tax purposes. An overview of the death industry in the United States is explored in Part I, as a discussion of casket versus cremation as the path most followed. Part II traces the underlying economics of “shuff[ling] off this mortal coil” in the United States, and the limited options (beg, borrow, surrender) that are available to assist the struggling consumer. The structure of any marketplace influences consumption, and Part III considers gaps in marketplace regulation that highlight or exacerbate structural features such as uncertainty of need, information asymmetry, vulnerability of the consumer, and inelasticity of the marketplace. Part IV considers the multifaceted issue of funeral poverty and the potential long-term implication of these extraordinary expenses upon families. The Article concludes with a cohesive framework of solutions responsive to the unique structural features of the death services marketplace, by which funeral poverty issues may be comprehensively addressed in the United States.

Victoria J. Haneman*

* Frank J. Kellegher Professor of Trusts & Estates, Creighton University School of Law. I would like to thank Tiffany Graham (Touro), Marc L. Roark (Southern University), Katherine Macfarlane (Idaho), Carla Spivack (Oklahoma City), Paul E. McGreal (Creighton), John Linarelli (Touro), and Caitlin Doughty for feedback, guidance, and encouragement. Special thanks to Troy C. Johnson, Director of the Creighton Law Library, who has always been amazingly supportive of my research needs. Director Johnson was particularly accommodating and accessible when COVID-19 abruptly closed the school. Finally, my heartfelt gratitude to research assistants Sarah K. Mielke and Thomas R. Norvell for attention to detail and impressive editing skill.

 

Mergers, MACs, and COVID-19

Mergers, MACs, and COVID-19

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Introduction

The conventional wisdom is that MAE/MACs in merger agreements provide an opportunity for buyers to renegotiate merger agreements in the event of intervening adverse events. However, the experience following the COVID-19 outbreak suggests that the conventional wisdom is incorrect or at least overstated. In fact, MAE/MACs shift the risk of exogenous adverse events (like COVID-19) to buyers while leaving only the risks of adverse endogenous and semi-endogenous events with the seller. The consequence of this risk-shifting is to strictly limit the circumstances under which a buyer can credibly lean on a MAE/MAC to threaten to terminate a merger agreement and initiate a renegotiation. Parties to merger agreements appear to have internalized that lesson, as demonstrated by the relative paucity of renegotiations in the immediate aftermath of the COVID-19 outbreak.

Brian JM Quinn*

Associate Professor of Law, Boston College Law School. Many thanks to Ms. Jihoo Kim for her valuable research assistance.

 

 

Trade Secrets and Personal Secrets

Trade Secrets and Personal Secrets

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Introduction

Two separate systems of law govern secrets. The first one concerns trade secrets: confidential business information that provides an enterprise with a competitive edge. The unauthorized use of a trade secret by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. The second system protects personal secrets. This system is information privacy law. In- formation privacy law deals with the regulation, storing, and use of personal information of individuals. While both systems concern secrets, the laws that govern them comprise entirely different regimes, and have almost nothing in common.

This Article aims to examine the different ways in which the law protects commercial and private secrets. The most fundamental difference is that the trade secrets regime forbids the unauthorized use of a business’s confidential information, while privacy law does not forbid the unauthorized use of a person’s confidential information. If a firm takes measures to protect information of value, the law forbids the use of this information. Yet, as to personal secrets, the mere fact that someone has taken measures to protect their privacy does not create an obligation to avoid misappropriation of their in- formation.

This asymmetry of protection is especially troubling when these two systems collide. For example, certain information can be subject to a trade secret of a company, while at the same time strongly ‘belong’ to an individual. Trade secret laws often prevent individuals from learning about uses that firms conduct with their own private information.

This Article explores the extent to which the distinction between the two laws is justified, and analyzes whether the law of information privacy can be modified to resemble trade secrecy more closely. This exploration is particularly relevant under today’s climate of commodification of private information, where both users and companies make transactional use of personal data on a regular basis.

Lital Helman*

*Assistant Professor (Senior Lecturer in Law), Ono Academic College. The author is grateful to Michael Birnhack, Rochelle Dreyfuss, Daniel Gervais, Sonya Katyal, Gideon Parchomovsky, Joel Reidenberg of blessed memory, Michael Risch, Sharon Sandeen, Ofer Tur Sinai, Deepa Varadarajan, Felix Wu, and Tal Zarsky, for helpful insights and advice. The author is also thankful for input received in the 2020 Intellectual Property Scholars Conference and in the Ono Faculty Workshop.

 

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