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Weekly Roundup: April 5


At the Blog

On Monday, Mila Versteeg, Kevin Cope, and Gaurav Mukherjee wrapped up our miniseries on Grants Pass v. Johnson, by arguing that in granting homeless individuals the right to sleep on public lands, the Ninth Circuit has created perhaps the first federal social welfare right in American constitutional history. Moreover, the authors argue, the Ninth Circuit’s approach to doing so is innovative, even from a global perspective, as it avoids two pitfalls that are well-documented in the comparative literature about the judicial enforcement of social welfare rights: micro-managing social rights-related policy, and, conversely, doing so little that plaintiffs receive few tangible benefits.

On Tuesday, Luke Messac explaind how nonprofit hospitals frequently deploy administrative hurdles to prevent low-income patients from receiving legally-mandated financial assistance. As a result, patients who should have qualified for assistance instead have had billions of dollars of debt placed on their credit reports or sold to aggressive collectors. As he writes, “In at least some prominent cases, hospital administrators have been clear that the administrative hurdles to qualifying for charity care are deliberate. In 2022, the New York Times reported on practices at Providence, a nonprofit system with 51 hospitals across the Pacific Northwest. Providence paid McKinsey $45 million in 2019 to advise on how best increase patient revenues. The consulting firm developed training materials for hospital employees, in which they were told to inform all patients, no matter how poor, that ‘payment is expected.’ They were also taught not to even mention the possibility of financial assistance until after asking for payment multiple times, and then offering to set up a payment plan.” Fortunately, there are some straightforward ways to mitigate this problem: the IRS should clarify that hospitals are required to proactively screening all patients for presumptive eligibility before any bill is issued; and the IRS and state attorneys general should pursue stronger enforcement of existing rules.

And on Thursday, Elizabeth Dale continued our symposium on Jocelyn Simonson’s Radical Acts of Justice, by recounting how ordinary people lost their power to administer criminal law during the long shift in American history from informal, non-professional law enforcement to our current system of formal, bureaucratized law enforcement. Well into the nineteenth century, formal processes of criminal law empowered ordinary people to enforce their visions of justice. Ordinary people also exercised their constitutional police power through extralegal action. However, these expressions of popular police power often assumed ugly forms, and such extralegal violence was a major driver of legal transformation. Governments, often at the behest of business and economic elites, passed reforms that consolidated their authority and checked the popular powers that they characterized as democratic excesses or assaults on order.

In LPE Land

Mark your calendars: On Tuesday, April 16 at 8pm ET, our wildly popularly open course/reading group “What To Do About the Courts,” returns for its fourth session. Led by Professors Ganesh Sitaraman and Amy Kapczynski, this session will focus on the legal tools available to us to restructure, reform, and disempower the Supreme Court.

Last call: for students interested in becoming an LPE Blog Editor, we have extended the application deadline for 2024-2025 to this coming Wednesday (April 10).

On Thursday, April 11, and Friday, April 12, at Yale Law School, Professors Aslı Ü. Bâli, Ntina Tzouvala, and Tendayi Achiume will be hosting a two-day conference entitled “TWAIL, Geopolitical Competition and the Rise of Non-Western Imperialisms.”

The Columbia Law Review is now accepting abstract submissions for their Fall 2024 Symposium on the Law of Protest.

Lina Khan went on the Daily Show to discuss lowering the cost of asthma inhalers, the importance of holding corporate executives accountable for lawbreaking, and how monopolies can use their power to bully, coerce, and censor speech.

Save the date: on May 2nd, at the New School, Aziz Rana, Nikhil Pal Singh, and Sandipto Dasgupta will be discussing Rana’s new book The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them.

In Dissent, Jedediah Britton-Purdy discusses Raymond Williams’s Resources for Hope.

In Spectre, Nate Holdren and Rob Hunter review Werner Bonefeld’s A Critical Theory of Economic Compulsion: Wealth, Suffering, Negation.