Of Rainbows and Rivers: Lessons for Telecommunications Spectrum Policy from Transitions in Property Rights and Commons in Water Law

A number of industries utilize the telecommunications spectrum to provide billions of dollars of services. However, some have noted that technological development and implementation of spectrum applications have not progressed as fast in the United States as in other parts of the world To improve technological development, many have recommended significant changes in United States policy of allocating spectrum, some based on a “property rights” approach, and others based on a “commons” approach. This article takes a novel approach to this problem, by applying lessons from our two hundred year history of water law to spectrum policy. Also, instead of analyzing static characteristics of property systems, this article changes its focus to examine transitions in these systems. Based on a new classification of property, “marketable commons property,” this article presents a solution to the allocation of spectrum: spectrum commons accounts

The Next Stage of Health Care Reform: Controlling Costs by Paying Health Plans Based on Health Outcomes

The predominant form of paying for health care in the United States, the Fee-for-Service system, creates inefficient incentives and has led to rising costs of health care. Scholars have suggested a number of alternative payment systems to correct these inefficiencies. Many of these suggestions were incorporated into the landmark health care reform legislation package of 2010 (Obamacare). However, because they rely on inefficient metrics of quality measurement, these proposals and the legislation itself will be insufficient to stop rising health care costs. Instead, this article presents a specific proposal for using health outcomes to calculate risk-adjusted payments to health care providers. Use of this metric would properly align incentives of health care providers with the objectives of improving quality of life. Implementation of this metric should be limited initially to large health insurance plans. Doing so enables these plans to create tailored incentives for their participating providers. This payment scheme can be adopted as part of Medicare Advantage, in which Medicare beneficiaries select a private health insurance plan for their coverage. While Obamacare does not sufficiently slow the rise of health care costs, these changes will lead to a health care system with both high quality and manageable costs

Unmistakably Clear Coercion: Finding a Balance between Judicial Review of the Spending Power and Optimal Federalism

This Article proposes a new tier of scrutiny, unmistakably clear, for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. Courts applying this standard will grant Congress significant deference, even more than rational basis review. Nonetheless, this standard does provide some limits to congressional authority, limits that were crossed by the Affordable Care Act’s Medicaid expansion condition. In order to maintain a balanced perspective, courts should apply the unmistakably clear standard to their review of congressional spending power conditions. Doing so will enable courts to define appropriate limits to congressional authority under the Spending Clause and at the same time, will permit federal, state, and local governments to solve public policy problems in a cooperative, optimal federalism manner

Beyond Dodd-Frank: Pinning Down the Octozilla of Too-Big-to-Fail with Multiple Market Instruments

A principal purpose of Dodd-Frank is to end too-big-to-fail. It makes improvements, but leaves in place two market failures that continue too-big-to-fail. Large banks receive an implicit subsidy, because of the continuing perception that they are too-big-to-fail. They also face incentives to make riskier investment choices because while they fully capture the returns for successful investments, the losses from catastrophic failures will be shared by taxpayers. Moreover, the costs of complying with Dodd-Frank\u27s regulations may make smaller banks too-small-to-succeed. Consequently, we need to go beyond the command-and-control approach of the Dodd-Frank Act, and adopt economic instruments to correct these market failures

“Unmistakably Clear” Coercion: Finding a Balance Between Judicial Review of the Spending Power and Optimal Federalism

This Article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. In order to develop this proposal, this Article traces the debate over the spending power from the Federalist Papers up through the decision in National Federation of Independent Business v. Sebelius, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the case yields not only the name for the new standard of review but also the technique for conducting it. Courts applying the unmistakably clear standard will grant Congress significant deference, even more than rational basis review. Nonetheless, this standard does provide some limits to congressional authority, limits that were crossed by the Affordable Care Act’s Medicaid expansion condition. Meanwhile, the level of deference inherent in the unmistakably clear standard will permit federal, state, and local governments to solve public policy problems in a cooperative, optimal federalism manner

The Next Stage of Health Care Reform: Controlling Costs by Paying Health Plans Based on Health Options

There are two problems in “demonizing” health insurance plans and MA. One is that it diverts attention from perhaps the most important long-term problem for health care: the need to control rising costs. Recent estimates say that expenditures on health care have grown from approximately seven percent of gross domestic product (GDP) in 1970, to nine percent in 1980, twelve percent in 1990, fourteen percent in 2000, and sixteen percent in 2008. Expenditures are projected to be over nineteen percent of GDP in 2019. While it is certainly true that health care insurance plans are not perfect and that there have been “wasteful” benefits offered by MA plans, simply addressing these will not effectively control future health care costs. This article proposes a systemic change to the payment system used by the MA program. Under this new system, health plans would be rewarded, not on the basis of how much care was provided, but rather on the effectiveness of the care. In other words, these plans will receive payments based on their delivery of “health outcomes,” not their delivery of health services. Health outcomes include measures of survival, data “derived from symptoms or even the results of physical examinations,” and “the results of simple tests, like blood levels, or more complex physiological measures.” They also include “information collected from patients, . . . reflect[ing] how they have experienced the illness and the effects it has had on their lives.” A number of obstacles have hindered the consideration of using health outcomes alone as the basis of a practical payment system, but this article argues that these obstacles can and should be overcome

The Dodd-Frank Act and Too-Big-To-Fail: What\u27s Missing? A Survey of the Current Literature

Many have suggested that the de facto governmental policy of “too big to fail” is one of the causes of the severity of the 2008 Financial Crisis in the United States. One of the express purposes of the Dodd-Frank financial market reform legislation of 2010 was “to end ‘too big to fail.’” The Dodd-Frank Act attempts to address “too big to fail” by expanding the regulatory reach to non-bank systemically-important institutions, by creating an “orderly liquidation authority,” and by limiting the authority of regulatory bodies that give loans to failing banks. However, the Act is incomplete. Even with these instruments, economic conditions continue to exist where large banks receive discounted rates for their funds, because market participants continue to perceive their loans and equity as less risky because they remain “too big to fail.” Additionally, Dodd-Frank’s enhanced prudential standards rely heavily on stronger capital requirements, and large banks can devise strategies that comply with these requirements despite the risk. To find out what is missing from Dodd-Frank, this article surveys the existing literature to discover a number of alternative approaches to ending “too big to fail.