Three meanings of capacity; or,why the federal government is most likely to lead on insurance access issues

This essay considers on what health policy issues the federal government is best able to lead. Positive leadership requires knowledge, power, and will. The federal government has different supplies of each for different aspects of quality of, cost of, and access to health care. Here I review technical capacity to attain desired ends, define the institutional strengths and weaknesses of the federal government, and outline current dynamics of the national political process. This analysis suggests both prospects for and some characteristics of successful policy. The federal government is more likely to lead on insurance than on other health policy issues because its supply of relevant knowledge and power is relatively high on insurance issues and the political barriers are lower than conventional wisdom suggests. But that leadership could take the form of either the expanding or contracting of access to insurance.     

Chinese Drywall Liability

This article presents an overview of the defective Chinese drywall product liability including a timeline starting when complaints were received by the Florida Department of Health in June 2008. The overview of the rapidly evolving product liability also discusses the factors that contributed to drywall demand and the production of synthetic gypsum as well as the common allegations that have been made against various drywall defendants and the actions and information provided by the Consumer Product Safety Commission—the federal agency tasked with leading the investigation into drywall complaints, potential health risks, and electrical and fire safety issues. Lastly, available corporate disclosures are summarized for drywall liabilities. The drywall problem has spurred much activity from homeowners, builders, contractors, suppliers, and drywall manufacturers. Much investigation has been done and more is in process, and initial findings and results are just being made available. That said, it is too early to tell the magnitude of the liability in which many facts remain unknown, and it is uncertain when the drywall problem will abate.     

Indigenous Peoples in International Environmental Cooperation: Arctic Management of Hazardous Substances

This article reviews the international legal framework on hazardous substances, with an emphasis on the Arctic and the roles of indigenous peoples. Persistent organic pollutants (POPs) and heavy metals pose significant risks to Arctic indigenous populations, mainly through the consumption of traditional foods. Treaties of particular relevance include the Protocols on Heavy Metals and POPs to the Convention on Long-Range Transboundary Air Pollution (1998) and the Stockholm Convention on POPs (2001). Arctic indigenous groups have exerted considerable influence on hazardous substance management through lobbying of national governments, participation in domestic and international scientific assessments, and direct advocacy in regional and global political fora. Their engagement on environmental issues has also helped to shape circumpolar consciousness and political activism among different indigenous groups. At the same time, there remain important limitations on the independent authority and ability to act of indigenous groups. Challenges for Arctic indigenous groups and States include continuing collaborative abatement work targeting many POPs and heavy metals, as well as addressing linkages between hazardous substances and climate change, which is another issue of great Arctic concern.     

Protecting the rights of the developmentally disabled: alternatives to the existing statutory and regulatory scheme.

The Developmentally Disabled Assistance and Bill of Rights Act of 1975 and related HEW regulations require each state to establish a system for the protection and advocacy of the rights of developmentally disabled persons as a condition to receiving specified federal funds. This Note contends that, under the present statutory and regulatory scheme, states and governors have broad powers to interfere with the proper functioning of protection and advocacy systems. The Note examines the principal legal remedies, contractual and constitutional, presently available to parties interested in reducing or eliminating such interference, and concludes that such remedies are ineffectual. Instead, the author proposes, the HEW regulations should be revised to strengthen the autonomy of protection and advocacy systems or, alternatively, Congress should amend the 1975 Act to provide for federal administration of such systems.     

The politics and policies of enhancing trustworthiness for information systems

This article describes how the integration of computing and communications complicates policy choices for protecting information systems. The technical challenge in the aggregate can be labeled “trustworthiness.” Its dimensions include information security, privacy of personal data and system safety and reliability. Although a holistic technical approach is promising, forging a consistent policy solution is another matter. Proposals for new institutions recur, while calls for public‐private partnership are a new theme. Yet industry signals growing discomfort with government programs associated with national security and law enforcement, fueling conflict and controversy over cryptography policy. Meanwhile, more federal agencies are addressing relevant issues, and more private sector organizations have entered the advocacy game. The article describes multiple policy legacies, key players and perspectives and policy trends. It outlines issues that shape the context for policy that responds to dependence on networked information systems.     

Evolving Federal Policies and Their Implications for Greenbook Interventions

This article addresses the influence of the Greenbook on federal policy in the past 20 years and traces the history of federal policy responses to the co‐occurrence of domestic violence and child maltreatment. While there has been some success in getting the domestic violence and child abuse fields to embrace equally the needs of adult and child survivors of domestic violence, federal legislation has progressed slowly, reflecting that ambivalence. Strengthening cross‐system policy advocacy and increasing evidence that addressing domestic violence improves outcomes for children are identified as ongoing needs.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

Legislative term limits in the United States

From 1990 to 1995 almost half of the American states adopted term limits for their congressional representatives and state legislatures. Although the US Supreme Court declared these laws unconstitutional as far as federal legislators are concerned, many states are proceeding to implement term limits for their own legislatures. This article examines the historical background to rotation in office, the political and constitutional issues involved, the term limits movement and its evolving strategies, congressional action on a proposed constitutional amendment and the impact on state legislatures. It concludes that the relative decline of the term limits movement since 1995 can be explained by a number of factors, including factionalism among its supporters and improving economic conditions in the country, but that it has made its own distinctive mark on American politics and its effects will be felt over the coming years.     

Medicare program; criteria and standards for evaluating intermediary and carrier performance: millennium compliance--HCFA. General notice with comment period

This notice revises the criteria and standards to be used for evaluating the performance of fiscal intermediaries and carriers in the administration of the Medicare program. This revision establishes a performance standard requiring these contractors to meet requirements for millennium compliance. We require contractors to certify that they have made all necessary system(s) changes and have tested those systems in accordance with HCFA guidelines.     

Forgotten Children of Immigration and Family Law: How The Absence of Legal Aid Affects Children in the United States

The absence of government‐appointed legal counsel in immigration proceedings adversely affects large numbers of children in the United States. Children born in the United States to parents without citizenship status (U.S.‐born children of noncitizen parents or UCNP) are harmed by a parent's detention and removal. Unaccompanied alien children (UAC) who have entered the country without legal status are adversely affected by their own detention and removal. The possibility of obtaining relief from removal is drastically diminished by the lack of legal representation. Currently UAC and immigrant parents are not entitled to court‐appointed attorneys. Any meaningful change in immigration law, such as a federal statutory amendment to provide UAC and immigrant parents with government‐appointed counsel is unlikely due to the present political dissension in Congress regarding this issue. Because UAC and immigrant parents are not entitled to government‐funded legal representation, a pro bono legal service system has developed, but is unable to meet the present need adequately. For immigrant parents, this Note proposes the adoption of a statute to allow the appointment of court liaisons in family court proceedings. The court liaison is a nonattorney who is familiar with the processes of the family court and ensures that immigrant parents are fully informed regarding all pertinent family court proceedings. For UAC, this Note proposes an amendment to the William Wilberforce Trafficking Victims Protection Reauthorization Act to mandate the appointment of a child advocate to all UAC. The child advocate is not a lawyer, but works with the UAC's attorney to provide the child with legal representation and advocacy.

Key Points for the Family Court Community:
• UCNP confront the loss of parents to detention and removal. Children are condemned to limbo, torn between absent biological parents and placement in foster care.
• The recent surge in the number of UAC who enter the United States by crossing the border from Mexico has been described as a humanitarian crisis. These children often remain alone without legal protection, vulnerable to detention and removal.
• Ideally, UAC and the immigrant parents would be provided with government‐funded legal representation in immigration proceedings. In the absence of the federal statutory reform necessary to make that a reality, state statutory reform to allow for the provision of court liaison programs for immigrant parents and federal statutory reform to allow the appointment of child advocates for UAC can begin to offer children and families needed legal support and advocacy.

     

Public Policy and Political Dynamics of Heritage Conservation in the United States

Policy making and advocacy efforts throughout the legislative history of heritage conservation display the gaps in heritage conservation in the United States. To represent the political dynamics at the federal level in both intangible and tangible cultural heritage policy discussions, this article will examine cases of legislative processes: the policy discussions to amend the National Historic Preservation Act (NHPA) in 1997 and 2005 and the reauthorization of the American Folklife Center (AFC). The study will focus on the subgovernment framework in heritage policy to demonstrate institutionalization of policy discussion and review the intergovernmentalism and decentralization in heritage conservation.     

BEYOND POLITICS AND POSITIONS: A CALL FOR COLLABORATION BETWEEN FAMILY COURT AND DOMESTIC VIOLENCE PROFESSIONALS

The domestic violence advocacy and family court communities have each grown dramatically over the last three decades. Although these professional communities share many values in common, they often find themselves at odds with one another on a host of issues. This article examines the practical, political, definitional, and ideological differences between the two communities and calls for them to join forces and collaborate on behalf of children and families.     

The ghost that slayed the mandate

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction. The Supreme Court has placed limits on statutory subject matter jurisdiction over declaratory judgment actions in which a state seeks a declaration that a state statute is not preempted by federal law--precisely the relief sought in Virginia v. Sebelius. These statutory limits are a sea wall; they keep out, on statutory grounds, some suits that should otherwise be kept out on Article III grounds. The statutory and constitutional limits on federal jurisdiction over suits like Virginia v. Sebelius insulate federal courts from the strong political forces surrounding lawsuits that follow from state statutes designed to create federal jurisdiction over constitutional challenges by states to federal law. This Article identifies previously neglected jurisdictional limits, shows why they demand dismissal of Virginia v. Sebelius, and explains why it is appropriate for federal courts to be closed to suits of this type.     

Standards of compliance for abortion-related services in family planning services projects. Office of Population Affairs, OPHS, DHHS. Final rules

The rules issues below revise the regulations that apply to grantees under the federal family planning program by readopting the regulations, with one revision, that applied to the program prior to February 2, 1988. Several technical changes to the regulation are also made to remove and/or update obsolete regulatory references. The effect of the revisions made by the rules below is to revoke the compliance standards, promulgated in 1988 and popularly known as the "Gag Rule," that restricted family planning grantees from providing abortion-related information in their grant-funded projects.     

HIV treatments, vaccines, and microbicides: toward coordinated advocacy

In November 2003, the Canadian HIV/AIDS Legal Network convened a meeting in Montréal of global experts working in the fields of treatments, vaccines, and microbicides. The meeting was historic in that it was the first occasion on which advocates from the three fields had the opportunity to meet and exchange views on policy priorities. In this article, John Godwin provides a summary of the background paper produced for that meeting and of the key outcomes of the meeting. The article describes the reasons why developing a joint advocacy agenda has emerged as a priority for advocacy organizations from the three fields, despite their differing histories and the fact that they have often been positioned as competitors rather than collaborators. The role of a human rights approach in informing joint advocacy and the relevance of the prevention-care-treatment continuum are considered. The article then examines possible areas for joint advocacy, including funding, clinical trials, public private partnerships, tax credits, liability issues, equity pricing, bulk procurement, regulatory issues, manufacture, delivery, and national plans. The article concludes by noting upcoming opportunities for joint advocacy efforts, and outlining the next steps to be taken by the Legal Network to support coordinated advocacy.     

“Fair and Balanced?” Justice Issues on Political Talk Shows

Like their news program predecessors, many political talk shows focus a considerable amount of their coverage on justice issues. Although numerous past studies have examined justice issue presentation in news programs, infotainment, and crime drama, to date only one forthcoming study has examined crime and justice coverage on political talk shows. Political talk shows often present issues in a debate format, as well as emphasize the balanced nature of the content in advertising, with one program even using the slogan “fair and balanced.” Building upon the format of previous media studies, we analyzed a composite month of videotaped footage of three popular political talk shows appearing on cable networks: CNN’s Lou Dobbs Tonight, MSNBC’s Hardball with Chris Mathews, and The O’Reilly Factor from the Fox News Channel. Using content analysis techniques, this study examines balance in the form and content of these programs in terms of presentation of justice issues, political party identification of hosts and guests and realistic presentations of race and gender in the context of crime and justice. Results indicate that these programs tend to adopt an advocacy tone rather than an objectivist one. Furthermore, we demonstrate that racial and gender portrayals of crime and justice on these shows are significantly distorted from reality, with a priority afforded to white female victims of violent crime and minority male offenders.     

Barack Obama vs Bristol Palin: why the President’s sex education policy wins

The federal government has exponentially increased funding for abstinence‐only sex education over the last few decades, a position supported by former vice‐presidential candidate Sarah Palin’s daughter Bristol. Unfortunately, empirical research indicates that abstinence‐only education is ineffective and may have negative consequences for adolescents. Despite encouragement of abstinence, adolescents continue to engage in sexual relationships, indicating that a different approach to sex education should be supported. This situation raises a number of justice issues because it is important for the government to fund sex education curricula that instruct adolescents on how to protect themselves from pregnancy and STDs. The majority of parents also disagree with the federal funding of abstinence‐only education and support more comprehensive education. This indicates that funding abstinence‐only education is diametrically opposed to community sentiment. Federal funding of abstinence‐only sex education is also problematic as such policies violate a number of adolescents’ constitutional rights. Therefore, the federal government must revise its current sex education policies. President Obama’s proposed plan has the potential to overcome many of these issues associated with abstinence‐only education.     

A social and political profile of Canadian legislators, 1996

This research note provides an overview and an update on the social and political backgrounds of all elected Canadian legislators at the federal and provincial/territorial levels of government in 1996. For provincial/territorial legislators data are presented by electoral jurisdiction, and for all legislators by level of government and political party. Relatively few differences in social characteristics were found between the two levels although there were some variations by province, territory and party. Business, education and law are the three most prevalent occupations, although the latter has declined among legislators over time. There is little movement of members from the provincial to the federal level. The most common political experience of both groups lies in municipal governance. Over time women have increased their share of seats at both levels. Even in a polity such as Canada with high rates of legislative turnover at both federal and provincial/territorial levels and with new parties emerging, most changes in social and political experience backgrounds proceed incrementally.     

Congress and criminal justice policy making: The impact of interest groups and symbolic politics

This article explores the congressional criminal justice policy-making process in the United States, using efforts toward federal criminal-code revision and capital punishment as case examples. It examines how interest groups and symbolic politics affect criminal justice policy and thereby attempts to enhance understanding of the political realities of criminal justice policy making. Based on the findings reported here, an approach to criminal justice policy making is recommended. This approach builds on the disjointed incremental model found in the political science literature and should facilitate criminal justice policy makers in becoming more effective participants in the legislative process.     

Governors and “Their” Deputies: New Legislative Principals in Mexico

Many studies on legislatures around the world have not detected a regional voting dimension. Yet governors are often important political figures and can exert strong influence on state politicians. From an analysis of the Mexican legislature, I determine that governors hold important resources that ambitious politicians need in a system with no consecutive reelection. Mexican governors use their power over federal deputies to prod their agents, the caucus leaders, into working for their states' interests on fiscally relevant issues, especially the annual budget. On all other issues, the governors delegate their deputies' votes to the party's legislative leadership.