With a Democratic majority, the Congressional debate on healthcare reform continues with revision, compromise, and vocal opposition. Despite the partisan split, a theoretical consensus persist: more Americans should have access to affordable healthcare. The Devil–and divide–is in the details.

The Senate’s current proposed plan would allocate in excess of 800 billion dollars over the next decade with the goals of providing universal healthcare to all Americans, regardless of their current health issues, and creating government regulated insurance exchanges for individuals unable to acquire healthcare coverage from their employers.

The public option, whereby the government would fund healthcare for individuals either unable to afford plans offered by private insurers or barred because of a preexisting condition, would not kick in until 2014, as currently proposed. Republicans prefer a market approach to incentivize states to adopt policies that would minimize the amount of citizens uninsured.

Proponents maintain that funds will be spent more effectively, and fees will be generated from drug, device, and insurance companies. Proposals also include increasing taxes on certain high-income workers receiving Medicare, and reducing payments for certain benefits covered by Medicare Advantage plans, but not covered by Medicare. Elective, non-reconstructive surgeries may even be taxed at 5%, generating an estimated 5 billion dollars over the initial ten-year period.
The Congressional Budget Office indicates that this plan will help reduce the deficit by savings to Medicare and in other areas, making the reform “revenue neutral or better.”

Do not expect passage of a healthcare reform plan, Obama’s top priority, to occur before the New Year. Pundits predict that politicians up for reelection will use the healthcare debate as a campaign platform for the approaching mid-term elections next year.
Republican leaders have made a series of “Common Sense” reform proposals, including tort reform, allowing small businesses to pool resources to provide employees insurance, and permitting insurance companies to sell insurance plans across state lines. Tort reform proposals include increasing barriers to punitive damages and limiting pain and suffering damages to $250,000 for malpractice suits. Pains and suffering limitations, as proposed, would include both physical and emotional suffering reward caps. The reduced risk of frivolous malpractice suits would decrease wasteful over-testing currently used by physicians to shield themselves from potential liability.

Pooling resources would ideally allow small businesses to spread risks, reduce costs, and pass on savings to employees. Business owners could construct their own policies and allow employees to subscribe on a take it or leave it basis.

Currently, individual states regulate the benefit packages health insurance providers offer to residents of their states. California law, for example, regulates heath insurance offered to Californians. Under the proposed alternative plan, the law of the state where the insurance company is based would govern the policy requirements for insurance offered to individuals in every other state. Insurance providers could then establish themselves in the states with the requirements that suit the policies they intend to offer. The bills proposed in both the House and the Senate contain “buyer beware” clauses requiring health insurance policies to contain clear notice to consumers that their state’s consumer protection laws do not apply.

The plan to allow insurance providers to sell policies across state lines, originally proposed to Congress in 2005, would allow for greater flexibility and competition among providers. Proponents argue that the competition will lower prices while replacing costly and undesirable services with healthcare packages consumers demand.
States currently mandate health insurance providers to offer plans with specified services. This is blamed for the rise of insurance premiums: citizens are required to purchase healthcare packages that offer more than they would consume. According to the Congressional Budget Office, however, such mandates have only a minimal impact on insurance premiums. Still, proponents of reform maintain that greater flexibility and relief from state mandates will allow customers to purchase only those benefit packages they desire.

Critics fear that this plan will create a “race to the bottom” in quality of services covered, resulting in cheap insurance payments and inadequate coverage. Consumer protection groups and the Blue Cross Blue Shield Association criticize those who exploit this fear that providers will seek out states with little to no regulation. Choice of a state of incorporation provides a counterexample: although many corporations choose Delaware, this is definitely not a “race to the bottom” phenomenon.

There are proposals to establish a federally-mandated floor, requiring certain basic services to be offered in any policy. Proponents of the plan to sell polices across state lines argue that such fears are unfounded, since consumers will not chose to purchase a plan that does not offer the services they require.

The plan to allow healthcare insurance providers to sell policies across state lines, creating a more flexible market for healthcare plans, is seen as an alternative to government run healthcare - the Public Option. Republican National Committee Chairman, Michael Steele, opposes the Democrats bill claiming it “would impose a government-run healthcare experiment on America that increases premiums, increases taxes, cuts Medicare and allows for taxpayer-funded abortions.” In an apropos quip from The Daily Show’s John Stewart to Lou Dobbs, Stewart opines “[i]t feels like everyone that wants limited government, really just wants government limited to Republicans.”

Written by Ashton Inniss, 3L Senior Staff Writer

By Ashton B. Inniss, 3L

Staff Writer

The invited speaker and panel moderators reach a consensus: the future of the exclusionary rule is fading, shrinking.

On Friday, Oct. 9, the Southwestern Journal of International Law brought together U.S. and international scholars to discuss international applications of the exclusionary rule and the future of the rule in United States. Essentially, the exclusionary rule excludes admission of evidence at trial gathered in violation of the accused constitutional rights.

Following an eloquent and gracious introduction by Dean Bryant Garth, SW Prof. Karen Smith moderated the morning’s first panel on the “Current State of the Exclusionary Rule.” “There has never been universal support for the exclusionary rule,” declared Loyola Law School Prof. Laurie L. Levenson. Levenson discussed the recent Supreme Court decision Herring v. U.S. In that decision, handed down on Jan. 14, 2009, the Court extended the good faith exception and denied exclusion of evidence gathered after an arrest based upon an expired warrant in a negligently maintained warrant database. While the warrant for the defendant’s arrest was not valid, the Court permitted admission of the evidence based on the arresting officer’s good faith based on the information given. The professor was frequently referenced by other speakers throughout the symposium. Levenson concluded that the Court’s decision created an “unworkable, bizarre standard.”

Prof. Jody David Amour discussed the admission of a defendant’s fear of minorities to explain the defendant’s state of mind at the time a violent offense was committed when approached by an African-American. Amour termed this phenomenon “Negrophobia.” He found that those of his students who would admit this evidence would suppress evidence of a woman’s battered wife syndrome to explain why she acted violently toward an abusive spouse, and vice-versa.

Prof. Ellen S. Podgor, a former prosecutor and criminal defense attorney, finished the first panel. When discussing the rationale behind the exclusionary rule, Podgor described the justification that exclusion deters police from violating defendants’ rights “as just a façade.”

Prof. Máximo Langer, in moderating the second panel, “International Perspectives on the Exclusion of Evidence,” suggested that the U.S. should look to foreign models for guidance on our exclusionary rule. Canadian Prof. Don Stuart described Canada’s discretionary approach to exclusion where the jurisprudence for evidence is treated as a “living tree.” As a corollary, the decisions to exclude or admit evidence, as applied, often depend on individual judges who may never, or always, exclude evidence based on personal principles. Stuart recognized that individuals have no other effective remedy when the police violate their rights, besides exclusion.

Prof. Binyamin Blum discussed Israel’s fledgling exclusionary rule. While Israel does not have a constitution, the state has adopted a series of basic laws and has a judicially created exclusionary rule. As in Canada, the determination of exclusion relies upon determinations of individual judges. The more severe the crime, the more likely evidence gathered in violation of a defendant’s rights will be considered at trial. As Israeli criminal trials are not tried before juries, but before professional judges, there is a greater aversion toward admission based on the rationale that these judges will give the evidence an appropriate amount of weight. In Israel, the national security interest has eroded its already weak exclusionary rule. Blum criticized the deterrence rationale as based on empirical research that no one has collected.

Prof. Stephano Maffei expressed concern regarding the public’s escalating tolerance for state violations of individuals’ rights. Maffei discussed a recent case on appeal before the European Court of Human Rights to illustrate that balancing tests for admissibility of evidence promote majoritarian values. However, the true value of fundamental rights is that they are anti-majoritarian, he said.

Prof. Stephen C. Thaman, a former public defender and comparative law scholar, decries the lack of appreciation for constitutional rights by U.S. courts. The exclusionary rule arose in a time where the wrongs done by the state were more often worse than those acts committed by criminals. Today, the state can avoid the penalty of exclusion of relevant evidence because the state “can get all the evidence they need legally.” With palpable irony, Thaman asserted that “Americans are against big government in every aspect except when it comes to wiretaps, search and seizure.”

The symposium’s final panel, “Future Predictions on the Validity of Exclusion,” was moderated by SW’s recent hire, Caleb Mason. The panel’s first speaker, Prof. Andrew E. Taslitz, expanded upon Supreme Court Justice Ruth Bader Ginsberg’s concerns as expressed in Herring. Namely, denying exclusion for evidence gathered based on negligently maintained police warrant databases sends the wrong message to law enforcement entities. Specifically, when the state profits from its negligence, or wrongs citizens, it can cause a loss of faith in the justice system. Additionally, the Court’s decision creates an incentive for law enforcement agencies to maintain poor computer data about warrants as arrests made on expired warrants will lead to admissible evidence based on the arresting officer’s good faith. Taslitz framed the exclusionary rule as a public check on the government where “the perfect monitorial citizen, in the Fourth Amendment context, is the criminal defendant . . . [as a result of] strong motives to challenge” governmental intrusions.

Forecasting the future of the exclusionary rule, Prof. James J. Tomkovicz asserted that, “the past predicts the future of accelerated erosion of accelerated erosion” of privacy rights protected by the exclusionary rule. Lamenting the decline of the exclusionary rule, Tomkovicz lectured that “a mere ‘exclusionary rule’ that is not a constitutional right is much easier to erode.”

The symposium’s final panel speaker, Prof. David A. Sklansky, made three predictions about the future of the Fourth Amendment and exclusionary rule 10 years from now. First, the scope of events leading to exclusion will continue to shrink. The Herring decision made clear that only flagrant abuses would trigger exclusion. Also, abuses in police departments that engendered a strong exclusionary rule half a century ago do not occur as often today. Second, the exclusionary rule in the U.S. will still exist, and it will be stronger than its foreign counterparts. Third, the contours of the exclusionary rule will be as clear in 10 years as they are today.

Ultimately, suppression motions are the primary methods by which we send a message to the police about their behavior, although it is an imperfect message. Addressing practicalities of criminal practice, a former prosecutor for the U.S. Attorneys’ Office, Mason pointed out that “plea bargaining is always done against the backdrop of a potential suppression motion.”

There exist varied and strong connections between the study and practice of law and the American political arena. Read the full story

On the night of September 5, 2008 Christopher Nolan screened his debut film Following to a full-house of independent film devotees at LACMA’s Bing Theatre.

A Q&A session hosted by the Los Angeles Times Kenneth Turan followed the film.

While Nolan has most recently received notoriety for directing The Dark Knight, in addition to Batman Begins and the psycho-drama Memento, the director broke into the industry thanks to his success with Following at the Slamdance Festival in 1999.

Slamdance, which compliments the other snowy Park City independent film festival Sundance, currently celebrateing its fifteen year anniversary, prides itself as the preeminent festival by filmmaker, for filmmakers.

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