Mandatory Process

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights too freely. This conclusion undermines the freedom-of-contract rationale for trusting parties to make their own pre-dispute choices about the availability of dispute resolution process. Contributing to the second, more paternalistic wave of “hard” behavioral economics (recommending mandates, not nudges), this Article identifies circumstances under which the threat of behavioral market failure justifies a law mandating the procedural protections that people must “buy” before a dispute arises, whether they want to or not. This behavioral approach to understanding the value of process and when it should be mandatory has implications throughout the law. This Article shows how the behavioral approach leads to specific interventions for mandatory process in health insurance, the Federal Rules of Civil Procedure, the constitutional right to due process, and Medicare contractor agreements

Deputizing Family: Loved Ones as a Regulatory Tool in the Drug War and Beyond

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as fully explored. These include the potential for interference with underlying family relationships, the invisibility of care worker burdens, and the inequality of both the burdens and the benefits of care work. This Article shows how these difficult-to-quantify social consequences of deputizing family can and should be incorporated into the evaluation of laws that use loved ones as a tool of public health. It develops a normative framework for doing so and demonstrates the usefulness of this framework by applying it to the question of how and when patients may permit family members to access and authorize disclosures of protected health information. That analysis reveals the desirability of an “active choice” approach to such deputization; as compared to an “isolation by default” approach, active choice holds the promise to better and more fairly encourage, recognize, support, facilitate, and perhaps even compensate the uniquely valuable care work by loved ones that many who suffer from substance use disorder rely upon as a crucial support in their battle with illness. Specific administrative changes to effectuate that conclusion are recommended. Finally, the broader promise and pitfalls of the Article’s “deputization” frame for understanding certain forms of care work are also discussed

Mandatory Process

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights too freely. This conclusion undermines the freedom-of-contract rationale for trusting parties to make their own pre-dispute choices about the availability of dispute resolution process. Contributing to the second, more paternalistic wave of “hard” behavioral economics (recommending mandates, not nudges), this Article identifies circumstances under which the threat of behavioral market failure justifies a law mandating the procedural protections that people must “buy” before a dispute arises, whether they want to or not. This behavioral approach to understanding the value of process and when it should be mandatory has implications throughout the law. This Article shows how the behavioral approach leads to specific interventions for mandatory process in health insurance, the Federal Rules of Civil Procedure, the constitutional right to due process, and Medicare contractor agreements

Courts Should Apply a Relatively More Stringent Pleading Threshold to Class Actions

Policymakers from Senator Edward Kennedy to Civil Rules Advisory Committee Reporter Edward Cooper have proposed that class actions be subject to a more stringent pleading threshold than individually-filed suits, yet the question has not been fully explored in legal scholarship. This Article addresses that gap. It shows that courts following the guidance of Bell Atlantic v. Twombly should apply a relatively more stringent pleading threshold to class actions, and a relatively less stringent threshold to individually-filed suits. This contribution is set forth in two steps. First, this Article explains that, all else being equal, the anticipated systems’ costs and benefits of allowing a lawsuit brought via the class action mechanism past the pleading stage differ categorically from the costs and benefits of allowing through an individually-filed suit. That is because a suit that comes to court via a class action circumvents a gate-keeping mechanism that is both prior to and more important than pleading: the potential litigant’s decision whether to sue. Second, this Article points to the history of Twombly, the Supreme Court’s contemporaneous pleading decisions, and the Federal Rules of Civil Procedure to show that courts should subject damages class actions to a relatively more stringent pleading threshold in light of the different mix of costs and benefits they pose. In addition to exploring in depth whether class actions should be subject to a different threshold, this Article briefly discusses two other areas where it may be appropriate to adjust the stringency of the pleading threshold based upon procedural context. Specifically, it suggests that the stringency of the pleading threshold should depend upon whether a case is brought pro se and whether it seeks review of agency action on the administrative record

In Search of An Enforceabe Medical Malpractice Exculpatory Agreement: Introducing Confidential Contracts as a Solution to the Doctor-Patient Relationship Problem

Scholars have argued that the malpractice system would be better off if patients had the option of waiving the right to sue for malpractice in exchange for a lower fee. Some doctors have tried to follow this advice by having their patients sign medical malpractice exculpatory agreements, but courts usually have refused to enforce these agreements, invoking a void-for-public-policy rationale. This Note argues that a doctor could maximize the odds that a court would enforce her medical malpractice exculpatory agreement by somehow ensuring that she will never find out whether her patient decided to sign. A case study of the law in New York highlights the ambiguity in the void-for-public-policy rationale as to whether the simple fact that the doctor-patient relationship is implicated in a medical malpractice contract is fatal to enforcement, or whether such a contract could be enforced if it were nonadhesive and clearly worded. A behavioral-economic analysis of the patient’s decision to sign a medical malpractice exculpatory agreement reveals a reason why the agreements may be categorically barred: Some patients might unwillingly agree to sign for fear of signaling distrust or litigiousness to their doctors. A confidential contract—in which the offeror never knew whether the offeree had accepted or not—would avoid this signaling effect. A provider using such a contract could distinguish those cases in which the doctor-patient relationship alone seemed to justify nonenforcement as not involving this prophylactic measure

Mandatory Process

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights too freely. This conclusion undermines the freedom-of-contract rationale for trusting parties to make their own pre-dispute choices about the availability of dispute resolution process. Contributing to the second, more paternalistic wave of “hard” behavioral economics (recommending mandates, not nudges), this Article identifies circumstances under which the threat of behavioral market failure justifies a law mandating the procedural protections that people must “buy” before a dispute arises, whether they want to or not. This behavioral approach to understanding the value of process and when it should be mandatory has implications throughout the law. This Article shows how the behavioral approach leads to specific interventions for mandatory process in health insurance, the Federal Rules of Civil Procedure, the constitutional right to due process, and Medicare contractor agreements

An unexpected cause of pericardial effusion

We present a case of pericardial effusion due to embolization of a fragment of an inferior vena cava (IVC) filter, with subsequent perforation of the right ventricle. This is a rare and unexpected cause of pericardial effusion. Fracture or embolization of IVC filters is a relatively uncommon complication, but these events may have serious clinical implications. Although IVC filters are often placed with the intent of removal, the device in many patients is never removed. The long-term implications of IVC filter placement must be kept in mind when making decisions about device placement and subsequent removal

The Jurisdiction of the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several trends. First, the Congress is more likely to give the D.C. Circuit exclusive jurisdiction over the review of administrative rulemaking than over the review of agency decisions imposing a penalty. Second, the Congress is more likely to give the D.C. Circuit exclusive jurisdiction over the review of independent agency actions than over the review of executive agency actions. Finally, the Congress tends to grant the D.C. Circuit exclusive jurisdiction over matters that are likely to have a national effect. In sum, we explore what makes this court unique, from its history to its modern docket and jurisdiction

Optimization of Absorber Layer and Operating Temperature of Copper Indium Gallium Selenide Solar Cells Using Different Metal Contacts

Device simulation was employed to investigate the effect of metal back contact electrodes on the performance of n-type CdS/p-CIGS thin film solar cells using varying thicknesses of absorber layer at operating temperature of 300K. The effect of working temperatures was also studied from 300K to 400K in steps of 10K. The simulations were carried out using standard solar cell capacitance simulator (SCAPS) 3.3.03 version software. The results showed better efficiencies at the optimized thickness of 3µm for all the back contact electrodes under study. The maximum efficiencies of 17.5 %, 15.5 %, 11.5 %, 3.5 % and 3 % were estimated for CIGS thin film solar cell at 300 K for platinum, gold, cobalt, silver and copper back contact electrodes respectively. The efficiency decreases as the operating temperatures increases from 300 K to 400 K. It is recommended that the optimized thickness of 3 µm is appropriate as absorber layer for efficient and cost effective CIGS thin film solar cells for economic reasons