The Constitutionality of Mandates to Purchase Health Insurance

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined. This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below. This paper also considers the likelihood of any change in the current judicial approach to these legal questions.     

Assessing mandatory HPV vaccination: who should call the shots?

In 2007, many legislatures considered, and two enacted, bills mandating HPV vaccination for young girls as a condition of school attendance. Such mandates raise significant legal, ethical, and social concerns. This paper argues that mandating HPV vaccination for minor females is premature since long-term safety and effectiveness of the vaccine has not been established, HPV does not pose imminent and significant risk of harm to others, a sex specific mandate raises constitutional concerns, and a mandate will burden financially existing government health programs and private physicians. Absent careful consideration and public conversation, HPV mandates may undermine coverage rates for other vaccines.     

Holding (Quasi-)Autonomous EU Administrative Actors to Public Account

Abstract:  This article addresses problems of accountability in relation to two specific kinds of administrative actors in the EU system of multilevel governance, namely comitology committees and EU-level agencies. With regard to both sets of actors, the accountability issue is often framed in terms of delegation from a principal to an agent. This article explores the delegation of powers discourse and the question whether this framing adequately covers accountability forums and mechanisms that are emerging as a matter of legal and institutional practice. The latter sub-constitutional level is particularly relevant given the high degree of institutionalisation of both categories of administrative actors. Using these two categories of administrative actors as case studies, this article suggests that a delegation model of accountability in a democratic sense is not adequate and only captures part of emerging practice. A looser conceptual framing, understanding public accountability as a process in which power is checked and balanced by various actors, fits better within a more constitutional perspective on holding EU executive power to account.     

Fuzzy Legality in Regulation: The Legislative Mandate Revisited

How does law interact with regulatory reality, and why does legislative mandate, which presumably stands at the apex of a regulatory package, often deviate from its ideal‐type as exclusive organizer of action? These questions are treated in this article through the concept of “fuzzy legality,” which serves as a common title for six different legal arrangements that stray from the ideal‐type legislative mandate, while enabling “perfectly legal” industry behavior. Against the background of potential dangers involved in such practices, the article traces the politics of preference for fuzziness both by regulators and regulatees. It reassesses calls for responsive and reflexive law as a cure for the regulatory malaise: these may have been voiced due to existing overly rigid regulatory frameworks, rather than the intrinsic flaw of legal constructs.     

Shadowing the elected: mixed-member incentives to locally oriented parliamentary questioning

It is often suggested in the case of mixed-member electoral systems that legislators with close ties to the single member districts (SMDs) are more constituency oriented than those with weaker ties. This article investigates the effect of three career-related variables (mandate type, tier of candidacy and the number of formerly held SMD mandates) on the constituency orientation of national representatives. The analysis relies on a comprehensive database containing MP-level career information and the number of locally relevant written questions submitted between 2010 and 2013 in the Hungarian parliament. Contrary to expectations, the results suggest that SMD candidates who were elected on party lists tend to ask a larger number of questions with local relevance than SMD MPs. Furthermore, MPs with considerable SMD experience are found to be more constituency oriented only among those who gained their mandates in an SMD.     

Mandating interoperability of interpersonal communications services in an ecosystems competition context

With the adoption of Article 7 of the Digital Markets Act, the EU has taken a progressive approach to mandating horizontal interoperability of number-independent interpersonal communications services. This legislative measure addresses the structural competition challenge posed by direct network effects, which tend to lock users into established messaging platforms. However, it is not entirely clear how, if at all, the Commission should implement this interoperability mandate. To shed light on this matter, we present an ecosystems competition context where these messaging services transition into digital ecosystems to create value from user-generated data and attention. Within this context, we find interoperability mandates like Article 7 a plausible solution to the structural competition problem, although much is yet to be done to sharpen these mandates against the intricate inter-ecosystem dynamics and to empower multi-homing users in a post-interoperability world. Achieving this goal requires collaborative efforts not only from sector regulators responsible for overseeing these mandates but also from antitrust and data protection authorities.     

Incomplete Clearinghouse Mandates

In the 2007–08 financial crisis, over‐the‐counter (OTC) derivatives triggered the collapse of colossal financial institutions. In response, global policy makers instituted clearinghouse mandates. As a result, all standardized OTC derivatives must now use clearinghouses, and global financial market stability now depends upon these institutions. Yet certain underlying legal and regulatory structures threaten to undermine clearinghouse stability, particularly were a significant clearinghouse to become distressed. This article argues that the clearinghouse mandates are incomplete in that they fail to reform these problematic arrangements. As with electric utilities, the lights at the financial market infrastructures known as clearinghouses must always be on. Yet the legal frameworks for handling a distressed clearinghouse, the problem of clearinghouse recovery, and resolution, remain uncertain. This article advances debate on this issue. It argues that recovery, a private market restructuring process, can be conceptualized as a bargaining game dependent upon time‐critical cooperation between a clearinghouse and members. This article uses transaction cost economics to demonstrate, however, that certain underlying legal and regulatory structures could work at cross‐purposes to this necessary cooperation, and actually increase its cost. Based upon this analysis, it proposes reforms designed to ensure that parties’ incentives promote efficient recovery. In the absence of efficient recovery frameworks, the path of a distressed, significant clearinghouse is likely to resemble that of the government‐backed mortgage lenders whose fate more than ten years after their entry into conservatorship remains uncertain. This article aims to help avoid a repeat of this history.     

Legal Disciplinary Practices – Who Needs Them?

The recent publication of the government's Review of the Regulatory Framework for Legal Services in England and Walesin March 2004 heralds a new era regarding the way in which legal services are to be delivered to the public. In the wake of the Enron-Arthur Andersen debacle, and growing disenchantment amongst policy-makers and market players with the involvement of 'elite' accountancy firms in the provision of legal services, interest and attention has now shifted away from the formation of Multi-Disciplinary Practices towards a new model of legal services provider– Legal Disciplinary Practices (LDPs), where the focus is at all times on the provision of legal services, albeit widely defined. The purpose of this article is to explore, and subsequently critique, the rationales behind the formation of LDPs and to outline the dangers which the provision of legal services through such business structures is likely to pose not only for the legal profession, but also for society more generally.     

论委托贷款的法律价值和政策取向

在从紧货币政策和后国际金融危机影响下,委托贷款成为企业间借贷的重要工具,尤其上市公司利用融资优势和自有资金充足,面对暴利的房地产企业大量发放委托贷款,但是出现了问题。不由我们不重新审视委托贷款的形成背景、法律政策依据、法律属性、法律关系风险,从而提出委托贷款的法律和政策选择。     

Collisions at the Intersection of Gender, Race, and Class: Enforcing the Chinese Exclusion Laws

This article explores the ramifications of the intersections of gender, race, and class ideologies for the enforcement of the Chinese Exclusion Laws in the years immediately following their passage. Drawing from government documents and archival data, I argue that the notions of gender, race, and class that permeated the legislative debate contained significant incoherences and self-contradictions, and that many of the dilemmas surrounding the enforcement of the exclusion laws against Chinese women resulted from these collisions. Faced with conflicting mandates derived from, for example, racism and patriarchy, enforcement officers had to choose between equally powerful discourses. Their ad hoc and often pragmatic approach to such dilemmas contrasted sharply with a policy process that otherwise appeared to be driven by unquestioned—and unquestionable—moral mandates. In concluding, I note the implications for our understanding of the contingencies and instabilities of ideology and the legal practices of which it is part.     

Coercive psychiatry and human rights: An assessment of recent changes in the Soviet Union

Conclusion In light of the historical context in which the visit of the United States delegation took place, the emphasis was on the political abuse of psychiatry. It should be clear, however, that the repression of dissidents is only the most visible manifestation of a system of psychiatric control that has been, and continues to be, profoundly insensitive to human rights. Although some tentative steps have been taken to subject coercive psychiatry to the rule of law, these limited initiatives have not yet become operational. Implementation of the legal reforms recommended by the delegation would help to reduce the likelihood that the pattern of psychiatric repression will reemerge. But the proposed reforms have a larger purpose—to assure that the practice of psychiatry in the Soviet Union is properly respectful of fundamental human rights, whether or not the patients have engaged in political or religious dissent.This is a revised and expanded version of the Fifth Samuel and Kathryn Yochelson Lecture, delivered at Yale Law School, New Haven, Connecticut, U.S.A., September 28, 1989, and of a paper presented to the Second International Conference on Health Law and Ethics, London, England, July 21, 1989, which paper was reprinted in 18Law, Medicine, and Health Care 123 (1990).B.A., Johns Hopkins University 1966; LL.B., University of Virginia 1969. The author was one of two lawyers who served on an official United States Department of State delegation that visited the Soviet Union (February 26–March 12, 1989) at the request of the Soviet government to assess recent changes in psychiatry there. The U.S. delegation was led by Loren H. Roth, M.D., M.P.H. (psychiatric team leader) and Daniel A. Regier, M.D., M.P.H. (scientific director).This article summarizes the delegation's findings and, in so doing, draws heavily on its report, which was drafted by the delegation as a whole. However, the opinions expressed in this article are the author's and should not be attributed to the delegation.     

The Case for Large Participatory Conferences as a Means of Decision Making in International Environmental Law

As global environmental concerns such as climate change draw ever greater attention, there are increasing demands for national governments to engage in coordinated, internationally consistent decision making on environmental mandates, standards, and related matters. Are large participatory conferences the best means to achieve effective, consensus-based decision making in international environmental law? This article proposes two sets of reasons to answer this question affirmatively. First, legal reasons, since several sources of international law point to an incipient right to public participation in international environmental decision making, which could be satisfied by convening these conferences. And second, normative reasons, since allowing for participation is more consistent with the fundamental principles of liberty and equality, and participatory processes enhance the acceptance of the decisions and at the same time augment the possibilities of implementation.     

ETHICAL, LEGAL, AND PROFESSIONAL PRACTICE ISSUES INVOLVED IN ACTING AS A PSYCHOLOGIST PARENT COORDINATOR IN CHILD CUSTODY CASES

The use of Psychologist Parent Coordinators in child custody cases (called Special Masters in California) is becoming increasingly prevalent across the country. This postdivorce parenting coordination role is a legal/psychological hybrid, demanding knowledge and skill in legal domains (legal procedure, relevant case law, etc.), psychological domains (child development, family systems, etc.), and dispute resolution (mediation and settlement processes). Situated in the interface of legal and psychological paradigms, Parent Coordination may be reviewed by multiple legal and psychological regulatory bodies. Coming from varying perspectives, the practice guidelines and mandates of these legal, ethical, and licensing agencies impose multiple standards of review of Parent Coordination. A brief overview of the legal and psychological review processes applicable to Special Master work in California, as they relate to common issues that confront the Parenting Coordinator across the country, is the focus of this article. They suggest that the current lack of coordination of review processes creates a minefield of professional risk for the psychologist who chooses to practice in this role.     

Out of Place and Out of Line: Positioning the Police in the Regulation of Financial Markets

In November of 2003, the Royal Canadian Mounted Police launched a major initiative to combat securities fraud in Canada. Spurred by the Enron scandals in the United States, this involved the establishment of a series of specialized white-collar crime units with the express mandate of investigating serious cases of securities fraud and protecting investors from the worst of the market's abuses. After four years of activity, these units have produced little in the way of tangible results and have been widely criticized in legal, financial, and regulatory communities. Drawing on thirty-five interviews with members of these units, as well as outside stakeholders including Crown Attorneys and private litigators, this article examines the activities of these Integrated Market Enforcement Teams and highlights a number of barriers to the successful execution of their designated mandate. While factors such as procedural restrictions and limited expertise are certainly relevant, this analysis reveals that the IMET teams are more fundamentally constrained by their position in a broader regulatory field. Understanding this field, and its unique structure and politics, is essential in coming to terms with both the possibilities and limitations of securities enforcement in an increasingly complex financial world.     

The law and practice of international organizations’ interactions with personal data protection domestic regulation: At the crossroads between the international and domestic legal orders

The development and overlap of legal frameworks on personal data protection, on the one hand, by states and regional frameworks like the EU General Data Protection Regulation, and on the other hand, by International Organizations, raises fundamental questions about their coexistence and interaction, including questions concerning the interaction between the domestic and the international legal orders.This article considers how these different legal frameworks come into interaction and tension with each other, as well as how these tensions are addressed in the law and practice of International Organizations and in domestic laws.It reveals the pragmatism of a resulting approach which seeks to ensure effective protection of the fundamental right to personal data protection while respecting the need for IOs to be able to perform their mandate under international law in full independence.     

Hospice utilization: political, cultural, and legal issues

The provision of end-of-life care is considered a substantive part of nursing, and hospice is often considered the "gold standard" of optimal end-of-life care. Unfortunately, however, only an estimated 43% of patients eligible for hospice actually receive hospice services (Harrison, Ford, & Wilson, 2005). The purpose of this article is to describe the political cultural, and legal issues associated with the underutilization of hospice care. Specifically, this article will outline the policy issues for accessing hospice under Medicare and Medicaid, the cultural and social issues in hospice utilization, and the legal implications of these issues. In addition, this article will serve to offer initial solutions to the problems at hand in order to guide nurses in promoting effective, efficient, and realized access to hospice services.     

浅析商标平行进口

国际贸易中技术因素的增长,必然带来更多、更复杂的知识产权保护问题,商标平行进口便是其中之一。本文从商标平行进口问题的概述谈起,通过对理论根源的分析,结合我国当前的客观实际及国外相关立法经验,提出针对我国商标平行进口问题的立法建议。     

Why Do the European Court of Justice Judges Need Legal Concepts?

The article considers the reasons why the European Court of Justice (ECJ) judges need legal concepts when they pronounce their judgments. It points out that the ECJ as a law‐interpreting and an ipso facto law‐making court needs legal concepts to communicate results of its interpretative and law‐making enterprise. The article also shows how in the context of Article 234 EC preliminary ruling procedure legal concepts become useful tools of portraying ECJ judgments as mere products of interpretation and not as the results of subsuming the facts of the case into a legal provision. It is by means of application of legal concepts, that the ECJ judges are able to justify that they are not overstepping the mandate they have been entrusted with. In the same time the use of legal concepts enables them to engage in dialogue with national judges, who seek guidance as to the content of EC law rules, and to maintain a strong doctrine of precedent. Most importantly, however, the use of concepts promotes coherence which, the article maintains, is the primary source of Community law's authority, and thus constitutes the foundational technique of persuading the relevant audience that Community law is indeed a legal system.     

The ECB's performance under the ESM treaty on a sliding scale of delegation

Two opposing theories explain the European Central Bank's (ECB) far‐reaching powers: principal‐agent and trusteeship. This article situates both theories on a sliding scale of delegation, with agents on one end of the spectrum, and trustees on the other. Applying this new perspective to the European Stability Mechanism (ESM) allows us to understand how the ECB, positioned on the agent side of the scale by the ESM Treaty, slides towards the trustee side in practice. This way, the article identifies two problems. Firstly, the ECB assumes a ‘zone of discretion’ that is not captured by the control mechanisms, thereby disregarding an essential feature of delegation. Secondly, the rationale of the Meroni doctrine, judicial review, is disregarded given the insufficient protection against the ECB's actions. These findings become increasingly important with the long‐term aim to incorporate the ESM in the EU legal order.     

A New History of Colonial Lawyering: Likhovski and Legal Identities in the British Empire

The history of the legal profession has been dominated by Richard Abel's monopolization thesis, and by Terence C. Halliday and Lucien Karpik's political model of lawyers as maintainers of liberal polities. By contrast, Assaf Likhovski's legal history of mandate Palestine treats lawyers and judges as cultural intermediaries who shaped the legal identity of Jewish and Arab communities. This article situates Likhovski's book within a growing body of scholarship on non-European lawyering in the British Empire. It links Likhovski's case studies to legal figures from colonial India, West Africa, and Malaya, all of whom acted as cultural translators and ethnographic intermediaries in the formation of colonial identities.