Emory Law Journal

Volume 69Issue 6

Expensive Patients, Reinsurance, and the Future of Health Care Reform

Govind Persad | 69 Emory L.J. 1153 (2020)

In 2017, Americans spent over $3.4 trillion—nearly 18% of gross domestic product—on health care. This spending is unevenly distributed: Almost a quarter is spent on the costliest 1% of patients, and almost half on the costliest 5%. Most of these patients soon return to a lower percentile, but many continue to incur health care costs in the top percentiles year after year. This Article focuses on the challenges that persistently expensive patients present for health law and policy, and how fairly dividing their medical costs among payers illuminates fundamental normative choices about the design and reform of health insurance. In doing so, this Article draws on bioethical and health policy analyses of the fair distribution of medical costs, and examines how legal doctrine shapes health systems’ options for responding to expensive patients.

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Death of a Bail Bondsman: The Implementation and Successes of Nonmonetary, Risk-Based Bail Systems

William M. Carlucci | 69 Emory L.J. 1205 (2020)

The Eighth Amendment to the United States Constitution provides that bail, when afforded to a criminal defendant, not be excessive. However, there is no provision as to what form bail must take or how it is to be determined. This Comment analyzes the relative success of the risk-based, nonmonetary bail systems that several states have implemented. This Comment begins by analyzing the history of the right to bail in the United States, starting with how such a right was understood at the time of the founding. Next, the evolution of the application of bail and the considerations behind pretrial release or detention determinations, are discussed. This Comment then proceeds to analyze how risk-based, nonmonetary bail systems have been codified and applied. Last, this Comment evaluates the impact that these schemes have had on the states of implementation and potential alterations that would allow for better administration of such legislation.

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Ancillary Enforcement Jurisdiction: The Misinterpretation of Kokkonen and Expungement Petitions

Brandon Salky | 69 Emory L.J. 1255 (2020)

Prior to the Supreme Court’s decision in Kokkonen v. Guardian Life Insurance Co. of America, nearly every federal circuit had held that district courts had ancillary jurisdiction to entertain motions to expunge criminal records solely under equitable considerations. District courts, in deciding these petitions, would balance the interests of the individuals in having their records expunged against the interests of the public in having the records widely available. Because of the great strength of the public interest in the availability of these records, a court would only grant these petitions in extraordinary circumstances. Unfortunately for individuals with criminal records, these circuit courts interpret the Court’s decision in Kokkonen far too narrowly. Accordingly, this Comment argues that neither the language of the holding in Kokkonen nor the holding itself warrant the restrictive interpretation that these circuits apply. These lower courts are disregarding the qualifying language the Court employed and the cues the Court gave that demonstrate its intent was not to set a strict standard for ancillary jurisdiction.

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The Crippling Costs of the Juvenile Justice System: A Legal and Policy Argument for Eliminating Fines and Fees for Youth Offenders

Leigh R. Shapiro | 69 Emory L.J. 1305 (2020)

Across the United States, approximately one million youth appear in juvenile court each year. In almost every state, youth and their families face monetary charges for a young person’s involvement in the juvenile justice system. Too often the inability to pay subjects juveniles and their families to incarceration, suspension of driver’s licenses, an inability to expunge records, and economic and social stress, and pushes the youth offender deeper into the juvenile justice system. This Comment argues that fines and fees imposed on youth offenders should be eliminated nationwide because they ignore the U.S. Supreme Court’s holding in Bearden v. Georgia, they would be categorically banned under a correct interpretation of the Excessive Fines Clause, they are applied unlawfully under state statutes, they exacerbate economic and racial disparities, they increase recidivism rates for juveniles, and they create hardship for families, pushing responsibility onto sometimes uninvolved parents. Congress must safeguard the due process rights of youth and families and ensure the juvenile justice system, designed to support and rehabilitate, does not instead impose undue harm on juveniles and their families.

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