Tuesday, May 3, 2011

Maher on Opt-In Federalism and the Affordable Care Act

Professor Brendan Maher (Oklahoma City University) has posted on SSRN a draft of his article The Benefits of Opt-In Federalism, which is forthcoming in the Boston College Law Review. Here’s the abstract:

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.


May 3, 2011 in Recent Scholarship | Permalink | Comments (0)

Bin Laden's Demise: The Civil Procedure Angle

The Blog of the Legal Times has a good post on whether Bin Laden's death will have any effect on those seeking civil redress from the harms he caused on 9/11.  The short answer?  Not much.  From the post:

Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.

If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.


May 3, 2011 in Current Affairs | Permalink | Comments (0)

National Debt: Split Over Fair Debt Collection Practices Act Counterclaims Nicely Illustrates Application of 28 U.S.C. Section 1367(c)(4)

Once again, I would like to thank RobinCynthia, and Adam for having me as a guest blogger for April. This will be the last post of my guest blogging stint. 

28 U.S.C. Section 1367(a) indicates that 

Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Meanwhile, 28 U.S.C. Section 1367(c)(4) indicates that

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if...in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

For a while, I have been looking for a good example of a situation in which courts have invoked 28 U.S.C. Section 1367(c)(4) to decline to exercise supplemental jurisdiction over a state law claim. Then, I came across the dispute over whether courts should exercise supplemental jurisdiction over state law breach of contract counterclaims brought by defendant-creditors against plaintiffs suing them for violations of the Fair Debt Collection Practices Act.

Continue reading

May 3, 2011 | Permalink | Comments (0)