Volume 76, Number 2

May 2001

Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism

Michael J. Wishnie

Assistant Professor of Clinical Law, New York University. B.A., 1987; J.D., 1993, Yale University.

In this Article, Professor Michael Wishnie addresses the current pressing problem of denial of benefits to legal immigrants under the 1996 Welfare Reform Act in the context of a deeper inquiry into the very heart of immigration law: From where does the federal government derive the power to regulate its borders? Can Congress devolve this power to the states? Looking deeply into jurisprudence and textual sources, as well as history, he ascertains that this authority always has been exclusively federal and that to permit devolution would be to contradict the entire notion of sovereignty. Thus, Professor Wishnie concludes that any devolution of authority over immigration to the states, such as that contained in the 1996 welfare reforms, may not receive the judicial deference traditionally granted to federal immigration law. Instead, any state exercise in the immigration arena, even pursuant to Congress’s explicit approval, must be evaluated under thirty years of precedent subjecting state discrimination against permanent resident aliens to heightened scrutiny.

Private or Public Approaches to Insuring the Uninsured: Lessons from International Experience with Private Insurance

Timothy Stoltzfus Jost

Newton D. Baker, Baker and Hostetler Professor, College of Law, and Professor, College of Medicine and Public Health, The Ohio State University; Visiting Professor of Law, Spring 2000, Washington and Lee University. B.A., 1970, University of California, Santa Cruz; J.D., 1975, University of Chicago.

While the United States, virtually alone among developed countries, relies primarily on private health insurance to deliver access to health care services, private health insurance is not unknown elsewhere in the world. In this Article, Timothy Jost surveys the mixed public and private health insurance systems of Australia, Chile, Germany, and the Netherlands, as well as the largely public systems of Canada, France, and the United Kingdom. He shows that countries that place significant reliance on private health insurance also regulate the private insurance market heavily; only where private insurance merely supplements universal public insurance is the private market largely unregulated. Professor Jost concludes from his comparative analysis that market-reliant systems are unlikely to reduce the growing number of Americans who are uninsured, and that the differences between highly regulated private insurance systems and largely public insurance systems are less pronounced than generally assumed. While the United States politically is unlikely to move towards public insurance, he writes, a turn towards greater privatization would tend to worsen, rather than improve, the problem of the uninsured.

Rethinking the Debates over Health Care Financing: Evidence from the Bankruptcy Courts

Melissa B. Jacoby, Teresa A. Sullivan, Elizabeth Warren

Assistant Professor of Law, Temple University. B.A., 1991, J.D., 1994, University of Pennsylvania. Vice President and Dean of Graduate Studies and Professor of Sociology, University of Texas at Austin. B.A., 1970, Michigan State University; A.M., 1972, Ph.D., 1975, University of Chicago. Leo Gottlieb Professor of Law, Harvard University. B.S., 1970, Houston University; J.D., 1976, Rutgers University

In 1999, Professors Jacoby, Sullivan, and Warren undertook an empirical study of bankruptcy filings to understand better the circumstances that brought middle-class families to a state of financial collapse. The information gathered in the study, known as Phase III of the Consumer Bankruptcy Project, revealed that an estimated more than half a million middle-class families turned to bankruptcy courts for help after illness or injury that year. The findings of the study illustrate how bankruptcy files document the economic problems families encounter when bills mount and incomes fall in the aftermath of a medical problem. In this Article, Professors Jacoby, Sullivan, and Warren present the data from their study to illustrate that hundreds of thousands of middle-class families in the United States are devastated economically each year under the current health care finance system. Their data indicate that focusing on the presence or absence of health insurance alone would lead to an incomplete solution. Instead, the authors suggest that since bankruptcy effectively serves as part of the health care payment system, bankruptcy policy should be included in any comprehensive review of health care financing policy.


Stare Decisis and the Constitution: An Essay on Constitutional Methodolgy

Richard H. Fallon, Jr.

Professor of Law, Harvard University. B.A., 1975, Yale University; B.A., 1977, Oxford University; J.D., 1980, Yale University.

In this Essay, Professor Richard Fallon explains and defends the constitutional status of stare decisis. In part, Professor Fallon responds to a recent article by Professor Michael Stokes Paulsen, who argues that Supreme Court adherence to precedent is a mere “policy,” not of constitutional stature, that Congress could abolish by statute. In particular, Paulsen argues that Congress could enact legislation denying precedental effect to Supreme Court decisions establishing abortion rights. In reply, Professor Fallon contends that Paulsen’s argument depends on contradictory premises. If stare decisis lacked constitutional stature, then under Paulsen’s methodological assumptions it also would be indefensible as a “policy,” because a mere policy could not legitimately displace results that the Constitution otherwise would require. In defending the constitutional status of stare decisis, Professor Fallon develops arguments based on the text, structure, and history of the Constitution. But he emphasizes that the “legitimacy” of stare decisis is supported, partly independently, by its entrenched status and by the contribution that it makes to the justice and workability of the constitutional regime. More generally, Professor Fallon argues that constitutional legitimacy rests upon the relatively contestable bases of widespread acceptance and reasonable justice, and not upon “consent” to be governed by the written Constitution.


Achieving Restitution: The Potential Unjust Enrichment Claims of Indigenous Peoples Against Multinational Corporations

David N. Fagan

In the rush to exploit untouched resources in remote regions of developing nations, multinational corporations and their local government partners often trample on indigenous land and culture, at times committing atrocities against the indigenous peoples. In this Note, David Fagan examines the use of unjust enrichment as a theory of recovery for indigenous peoples seeking redress for these actions in U.S. courts. Fagan finds that indigenous plaintiffs likely can satisfy the elements of an unjust enrichment claim, and that such a claim is harmonious with the policies behind the unjust enrichment remedy, as well as the practical and personal considerations of these plaintiffs. He concludes that, consistent with its origin as an equitable, novel solution to difficult problems, unjust enrichment would be a particularly appropriate claim for indigenous plaintiffs to pursue.

Commandeering Under the Treaty Power

Janet R. Carter

In this Note, Janet Carter argues that the anticommandeering principle announced in Printz v. United States should not constrain congressional implementation of treaty obligations. The Printz Court struck the balance between federal goals and states’ rights knowing that Congress had alternative means of achieving its ends: the spending power and the threat of conditional preemption. Carter argues that those alternative means are largely unavailable, or at least less likely to work, when Congress is seeking to implement a treaty obligation. Therefore, the Printz Court’s federal/state compromise will weigh too heavily against federal interests if applied to treaty-implementing programs, suggesting that an absolute prohibition on federal commandeering pursuant to the treaty power is inappropriate.