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Law & Jurisprudence

Asset Building News Week, June 24-28

June 28, 2013
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The Asset Building News Week is a weekly Friday feature on The Ladder, the Asset Building Program blog, designed to help readers keep up with news and developments in the asset building field. This week's topics include the Supreme Court decisions, SNAP, and financial services.

The Sidebar: The Law of Drones and Relaxation

February 15, 2013
Rosa Brooks scrutinizes the leaked Justice Department memo that aims to provide legal rationale for the administration's drone program. Brigid Schulte introduces us to surprising research on how to be happier, healthier and more productive. Elizabeth Weingarten hosts.

The Sidebar: Taking on Guns and Brains on Trial

December 20, 2012

Robert Wright weighs in on whether the horrific shooting at Sandy Hook Elementary School will spur a gun control policy change. Kayla Pope and Hank Greely, who we recorded after an October New America event, discuss the developing field of using brain science in the courtroom. Elizabeth Weingarten hosts.

Programs:

Monopolies: Antitrust Law Protects Consumers, Not Competitors

  • By
  • Marvin Ammori,
  • New America Foundation
October 16, 2012 |

As we gear up for the presidential debates tonight, it’s worth reflecting on the presidential debates from exactly one hundred years ago.

The Faith that Faith Produced

  • By
  • Haroon Moghul,
  • New America Foundation
August 7, 2012 |

I was washing dishes in the kitchen when I stopped believing in God. Years later, I’m often unsettled at how much of my life I’d spent in that kitchen and how little of it I can recall, except for that one moment. Overwhelmed by constant desperation, I turned suddenly courageous, pondered what might happen if He didn’t exist, decided that He didn’t, and then He was gone. I think the rapid departure hit me the hardest. How had I been so easily taken in? I was raised to believe I should be Muslim, before everything and after everything.

Funding Legal Aid is Essential to Preventing Foreclosures

July 19, 2012
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Earlier this summer, I wrote about the significant cuts to the budget of the Legal Services Corporation, which provides funding to around 137 legal aid programs with over nine hundred offices nationwide. These organizations provide crucial services to low-income communities, ranging from foreclosure prevention to domestic violence services to increasing access to public benefits.  LSC-funded programs employ approximately 58% of the attorneys working in the legal aid field. Legal aid programs support asset building by helping clients access basic necessities and maintain their existing assets—including most families’ greatest asset, the home. Unfortunately, insufficient funding has left legal aid organizations struggling, and most families facing foreclosure unrepresented. However, banks have an opportunity to make small changes that could have a big impact with respect to one of legal aid's major funding streams - the Interest on Lawyers' Trust Accounts program.

Preserving Access to Justice: Legal Services and the Safety Net

June 19, 2012
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The Legal Services Corporation (LSC), which provides funding to legal services organizations throughout the country, is an essential feature of the safety net—though rarely described as such. LSC funding is used to provide civil legal services to households at or below 125% of the federal poverty line. Unlike in criminal cases, where the right to counsel is constitutionally guaranteed for indigent defendants, parties to civil cases have no such right under federal law. In other words, depending on where you live, it’s perfectly legal for you to lose your house, all your possessions, and perhaps even custody of your child without ever talking to a lawyer, no matter how little money you make.

LSC-funded services are crucial in helping keep many families afloat. Yet perhaps unsurprisingly, like other social services programs, LSC has faced major budget cuts, and continues to see its funding attacked. Over the past three decades, LSC’s budget has been effectively cut by just around seventy percent. One member of Congress even proposed an amendment to the FY 2013 House Appropriations Bill that would have ended all funding for LSC, citing the organization as “nonessential” and alleging fraud (it failed, but received 122 votes in the House). Like the proposed cuts to SNAP, cutting LSC’s funding—or even failing to increase it—could have truly dire consequences for low-income communities nationwide.

Government and the Net Serve Us, Not Vice Versa

  • By
  • Rebecca MacKinnon,
  • New America Foundation
May 16, 2012 |

A global struggle for control of the internet is under way. At stake is nothing less than civil liberties, privacy and democracy itself. Electronic censorship and surveillance are on the rise -- not only in dictatorships but also in democracies. Facebook and Google are battling over who will be our gateway to the rest of the internet through "like" buttons and universal logins -- giving them huge power over our online identities and activities. Companies are clashing with governments over how far the law should extend into private networks, platforms and devices.

A Belated SCOTUS Wrap-up, and A Look Forward

April 13, 2012
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Unless you've been living under a whole pile of rocks, you heard about the Supreme Court’s oral arguments in Florida v. Department of Health and Human Services—the Obamacare case. You’ve probably heard by now from a dozen reporters and pundits who claim that they know which way the Court will rule.

I’m not going to make that claim. There are understandable arguments on both sides, and it’s incredibly difficult to predict how this Court will decide on such an important, divisive, politically charged issue.

Instead, I want to provide a little perspective. Even if the Court decides that the individual mandate is not a Constitutional exercise of Congressional power, the consensus of Courtwatchers is that they’re unlikely to toss the entire law down the drain with it. If the mandate is unconstitutional, there are two main options without throwing out the whole thing: the mandate might get thrown out on its own, or two crucial insurance reforms (community rating and guaranteed issue) might go with it.

Guaranteed issue and community rating are the key pieces of the law—they require insurers to give insurance to anyone who comes asking, and limit the amount that prices can vary between people, respectively. The individual mandate was designed by the Heritage Foundation during the last health care debate (over President Clinton’s health care reforms, in 1993), and it's designed to attack two economic problems that can emerge when people have that protection: moral hazard and the insurance “death spiral.” Moral hazard is the economics term for the danger that healthy people might go without insurance, only to buy it (at the low, community-rated price) if they get sick. If people can do that, insurance costs have to be higher for responsible buyers who get in at the beginning. The “death spiral” is a similar phenomenon, where people who buy insurance are sicker than average, which drives up the price of insurance. That price increase makes more healthy people drop their coverage, leading to an even sicker risk pool and higher costs. Eventually, the insurance market falls apart because the only people left wanting to buy insurance are too sick to afford their own health care costs.

The mandate works by pushing healthy people to buy insurance even when they’re likely to stay healthy—thereby preventing moral hazard, and avoiding death spirals. The thing is, any policy mechanism that makes going without insurance less appealing will work the same way. That means even if Congress isn’t allowed to create an individual mandate, there are a whole slew of other options for what they could do. Several mechanisms have been proposed that would achieve exactly the same result as the mandate penalty, but would do it through the tax code, where Congressional power is less restricted. Those might still be challenged in court, but would have a better chance of survival. Alternatively, Congress could just force people who choose to go without insurance to stay that way, even if they get sick: it would be entirely within Congress’s power to say that an individual who could have gotten insurance and didn’t, would: 1) not be eligible for insurance subsidies if he wanted to get insurance on the exchanges; 2) not have guaranteed coverage for any pre-existing condition; 3) not be protected by guaranteed issue and community rating, so he might have to pay an incredibly high premium if he could get insurance at all. Those penalties might be in effect for five years from the date when he declined insurance, in order to strongly discourage people from making rash choices because they feel healthy this month.

That would, in effect, create a universal insurance system, with an opt-out for the very confident and those who genuinely wish to self-insure. It would be indisputably within Congress’s Commerce Clause power, too—it would be a direct regulation of insurers and participants in the insurance market. If the mandate gets struck down, it would be a relatively simple legislative task (although perhaps a heavy political lift) to fix the law and restore its universality.

As an eternal reminder: the Affordable Care Act didn’t fix the American health care system—it aimed only at the health insurance system. Researchers have documented unnecessary care that costs hundreds of billions of dollars each year, and the law does little to attack that waste. Correcting the delivery system will require hard political and practical conversations about global budgets, evidence-based care, and getting control of the outrageous growth in health care resources. Depending on how the Court rules, health care might fall off the political radar this year, but you can be sure it’ll be back soon enough. The system has too much waste—and too much opportunity for improvement—to let it go when the Justices rule.

Final Round: FIGHT!

March 28, 2012
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Wow. Over six hours of argument later, we're left with... well, a little over six hours of audio. Now we get to wait for the decision--only 89 days to go! (The opinion will almost certainly be issued on the last day of the term, which is scheduled for Monday, June 25th.)

We haven't had a chance to listen to today's arguments yet, so without comment: this morning, in National Federation of Independent Businesses v. Sebelius, the Court considered whether the remainder of the Affordable Care Act can stand if the Court finds the individual mandate unconstitutional. This afternoon, again in Florida v. Department of Health and Human Services, the Court heard argument about the Medicaid expansion in the law--specifically, whether it amounts to an impermissible coercion of the states by the federal government. Remember, this one is incredibly important for the federal-state balance. The Supreme Court has never struck down spending as coercive before, and it would be shocking if they did now. See Aaron Carroll's piece over at JAMA if you're interested in more.

We'll be back with more blogging soon (and probably more commentary on the arguments), but in the meantime, check out the recordings! Happy listening.

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