Among the various human forms alluded to in the Hebrew prayer, mental retardation appears to be one of the most difficult to celebrate. It is the disability that other disabled persons do not want attributed to them. It is the disability for which prospective parents are most likely to use selective abortion (Wertz 2000). And it is the disability that prompted one of the most illustrious United States Supreme Court Justices to endorse forced sterilization, because "three generations of imbeciles are (...) enough." The mentally retarded have at times been objects of pity, compassion, or abuse by their caretakers and society at large. But they have rarely been seen as subjects, as citizens, as persons with equal entitlement to fulfillment. (shrink)

There is considerable disagreement as to whether any gender differences on the bench are symbolic, substantive, or both. This paper, based on never-before published surveys and personal interviews conducted in the early 1980s, contributes to that discussion by describing what women appointed to the federal bench by President Carter between 1976 and 1980 had to say about gender differences in their first years in office. I conclude that these early experiences and comments by women on the bench are still (...) relevant today and presage much of the research on judicial gender which has followed. (shrink)

According to the German Embryo Protection Act, PGD has been banned in Germany since 1990; one reason is the legislature’s avoiding to insert a revision clause regarding medical advance into the law. The ruling of the German Federal Court of Justice of July 2010 shows the problems resulting out of this approach and declares PGD to be permitted in certain cases. The article discusses the necessity for, as well as the problems of, an interdisciplinary dialogue in the field of (...) reproductive medicine. (shrink)

We implemented a user-centered approach to the design of an artificial intelligence (AI) system that provides users with access to information about the workings of the United States federal court system regardless of their technical background. Presently, most of the records associated with the federal judiciary are provided through a federal system that does not support exploration aimed at discovering systematic patterns about court activities. In addition, many users lack the data analytical skills necessary to conduct their (...) own analyses and convert data into information. We conducted interviews, observations, and surveys to uncover the needs of our users and discuss the development of an intuitive platform informed from these needs that makes it possible for legal scholars, lawyers, and journalists to discover answers to more advanced questions about the federal court system. We report on results from usability testing and discuss design implications for AI and law practitioners and researchers. (shrink)

The subject of this study are the argumentation strategies applied by the Polish and German apex courts competent in criminal matters, namely the Supreme Court and the Federal Court of Justice, respectively. The investigation encompasses a total of 200 rulings issued by the criminal panels of these bodies. Particular focus was put on examining which arguments both courts apply to solve interpretation problems, and secondly, how these courts systematize the interpretation process. Methodologically, the examination utilizes, inter (...) alia, the principles of qualitative research, without neglecting the legal dogmatic perspective. A crucial theoretical foundation underlying this study is the distinction between formalistic and substantive legal cultures. The examination reveals that neither the Polish nor the German legal culture is purely formalistic or value-oriented. Nevertheless, the Supreme Court of Poland shows greater affinity for formalistic arguments, whereas the substantive interpretation methods are more widespread in the judicature of the German Federal Court of Justice. In particular, the Polish Court prefers the linguistic interpretation, whereas the German Court favours the purposive approach. (shrink)

This paper investigates the phenomenon of judicial law-making in the practice of the highest courts dealing with criminal matters in Germany and Poland on the basis of 200 of their decisions. While German jurisprudence principally acknowledges the right of the judiciary to create new law, the Polish legal theory generally rejects this notion. Still, research indicates that, in practice, the differences in the frequency and intensity with which these courts pass creative rulings are not as substantial as the (...) discrepancy in the theoretical stance would suggest. Owing to circumstances, both the German Federal Court of Justice and the Polish Supreme Court are willing to create new legal norms, but the dimensions of judicial law-making presented by these bodies deviate from each other. In the research sample, the German Federal Court of Justice was more inclined to introduce legal institutions that were foreign to the statutes and rule against the will of the lawmaker explicitly stated in the preparatory works. On the other hand, the Polish Supreme Court used logical conclusions more often, but did not also refrain from passing rulings against the clear wording of the statutory law, and was just as willing to go beyond the wording of the law as was the German Federal Court of Justice. Notably, only the German apex court is willing to openly admit that it creates new legal norms, whereas the Polish Supreme Court does not concede in the reasons that its decisions are of a law-making nature, especially when it applies so-called “interpretation in the wider sense”—which is, in essence, a “concealed” way of creating new legal norms. (shrink)

The U.S. Court of Appeals for the Fifth Circuit ruled, in United States u. Texus Tech University, 171 F.3d 279, that the Eleventh Amendment bars a private citizen from bringing a qui tam action in federal court against a state, absent federal intervention.Intervenor Carol Foulds was a dermatology resident at the Texas Tech Health Services Center. While a resident, Foulds examined patients, made diagnoses, and prescribed treatments for patients. Foulds alleged that she and other residents performed these medical (...) services without the supervision of staff physicians. Foulds further alleged that, after residents performed these services without physician oversight, staff physicians signed charts and Medicare and Medicaid billing forms certifying that they personally performed or supervised the administration of these services. Foulds estimates approximately 500,000 false claims occurred in a span of ten years.In 1995, Foulds filed a qui tam action with the U.S. District Court for the Northern District of Texas. As regulated by the False Claims Act, 31 U.S.C. § 3729, the complaint remained under seal. (shrink)

The United States Court of Appeals for the District of Columbia Circuit held that the district court did not have jurisdiction over the American Chiropractor's Association's federal question claims brought under the Medicare Act, despite affirming the ACA's prudential standing to pursue its claims. The Appeals Court reversed the lower court's decision allowing a doctor of medicine or osteopathy to perform manual manipulations of the spine on Medicare beneficiaries to correct a subluxation.The Medicare program “subsidizes medical insurance for elderly (...) and disabled persons.” An enrollee selects a physician or obtains medical services through a managed-care provider, such as a health maintenance organization. (shrink)

The United States Court of Appeals for the District of Columbia Circuit held that the district court did not have jurisdiction over the American Chiropractor's Association's federal question claims brought under the Medicare Act, despite affirming the ACA's prudential standing to pursue its claims. The Appeals Court reversed the lower court's decision allowing a doctor of medicine or osteopathy to perform manual manipulations of the spine on Medicare beneficiaries to correct a subluxation.The Medicare program “subsidizes medical insurance for elderly (...) and disabled persons.” An enrollee selects a physician or obtains medical services through a managed-care provider, such as a health maintenance organization. (shrink)

Decisions made so far by the Federal Constitutional Court of Germany have always been characterized by their writing and content, even down to details, precision, accuracy, professional legal style of writing, always clear in the elaboration and adjudication of cases from its competence, but surprisingly, in our country, only a few have paid attention to the German Court in a scientific context, which can be seen from the only few materials we possess in the Albanian language. The purpose of (...) this paper is to provide an overview of this Court, so that the comparative aspects can be made, highlighting its advantages and disadvantages, in case of dictating the state need for reform of the Constitutional Courts. Those who have institutionalized this constitutional institution know its value in the system of constitutional justice, which performs it in terms of protection of constitutions, its principles and value, and most importantly in the protection of freedoms and rights of human beings and citizens. The Federal Constitutional Court of Germany, to this date, has conveyed the efficiency of the protection of the German legal order, the serious approach and law interpretation, for the protection of freedoms and human rights, which ranks this court into a high level among all other powers in the German law system. The author, in the following paper, gives an overview of this Court starting with its history, organization and functioning, which today undoubtedly constitutes one of the most important constitutional courts in the world. (shrink)

This article highlights certain recurring themes in Mariano Artigas’s works by examining a judicial decision made in the United States in 1982 concerning the teaching of “creation-science” alongside “evolution-science” in public schools. These themes include: the proper delimitation of the boundaries of science, the importance of philosophy as a bridge between science and religion, and the misunderstandings concerning the limits of science inherent in scientism.

The goals of this chapter are to provide a concise and accessible overview of: the key events leading up to the legalization in CanadaCanada of medical assistance in dying (i.e., assisted suicide plus voluntary active euthanasia) in June 2016; the subsequent amendments to that legislation, passed in March 2021, and some of the parliamentary and public discussion surrounding it; and an analysis of where the country may be headed in the near future with respect to additional legislative changes and their (...) fallout in different regions of the country. (shrink)

The article presents the judgment of the German Federal Constitutional Court from 26 February 2020 on assisted suicide. The statements regarding human dignity, human rights and the relationship between citizens and the state are examined. Furthermore, the consequences resulting from this interpretation of human dignity for states that are pluralistic and based on human rights will be laid out. The court’s judgment limits the power of parliaments and poses a challenge to many laws in states that see themselves as (...) pluralistic, human rights-based states. There are no data in this work. (shrink)

In this paper I take up aspects of the origins of the Constitutional Court of the Federal Republic of Germany, with special attention to the reasons for the aggregation of power and to the question of how far constitutional court models from abroad played a role in the development of the Court. Where the beginnings of the Federal Constitutional Court are concerned, the German tradition and the experience with the lawless regime of the national socialists played a fundamental (...) role. To a certain degree the Austrian model and to a lesser degree that of the United States figured in the deliberations of Germany's post‐War constitutional framers, too. (shrink)

Allegations of bias against senior judges have not been common in English courts, so the House of Lords had little material to draw on when the Pinochet case was decided. It is therefore worthwhile to compare their Lordships» approach with that of the Federal Constitutional Court in Germany. This court has been selected because: (a) it has a comparable number of judges to the House of Lords and its decisions are unappealable, and (b) its cases have a constitutional (...) and (often) political content—as did the Pinochet case. The Federal Constitutional Court case law is comparatively prolific, so this study has been limited to the last 15 years. The case law covers a wide variety of issues, for example provision of legal opinions or representation, membership of associations, holding of public offices, public statements of opinion. If the standards set in this case law were applied to Lord Hoffmann's position in the Pinochet case, there are grounds for saying that he might not have been excluded. (shrink)

Florijn’s analysis of the Dutch Supreme Court ruling on the Albert Heringa case demonstrates that the Dutch approach to justifying physician-assisted death is based primarily on the physician...

In March 2008, the German Federal Constitutional Court (GFCC) has passed an important, even though preliminary, decision concerning data retention. The GFCC’s decision accepts the storage of data, but greatly restricts their use to serious offenses like murder and organized crime. From an ethical point of view, it is particularly interesting to look at the justification given by the GFCC, which relies heavily on the argument that the “impartiality” (Unbefangenheit) of communication will be thoroughly damaged if feelings of being (...) watched spread in a society. This argument is examined in view of two contrasting theoretical approaches: Discourse ethics and evolutionary contractarian theory. (shrink)

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court's approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together (...) legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. (shrink)

Die Arbeit des Bundesverfassungsgerichts hat Ausstrahlungswirkung auf alle drei Staatsgewalten. Während sich das Interesse der Öffentlichkeit wie der Medien im Wesentlichen auf spektakuläre Einzelurteile fokussiert, bemüht sich die Rechtswissenschaft, die Rechtsprechung des BVerfG in ihrer gesamten Breite zu erfassen, zu analysieren und zu strukturieren. Die wissenschaftlichen MitarbeiterInnen nehmen als Erste Tendenzen und Rechtsprechungslinien wahr und begleiten sie mit ihrer Arbeit. Aus dieser Nahsicht herauswird in dem vorliegenden Bandder Versuch unternommen, zentrale, charakteristische und bedeutsame Themen und Fragestellungen aufzugreifen und auf wissenschaftlichem (...) Niveau zu erörtern. Die Beiträge gehen dabei über bloße Entscheidungsbesprechungen ebenso hinaus wie über Rechtsprechungsübersichten. Im Aufzeigen sowohl von Hintergründen als auch von Tendenzen der Verfassungsrechtsprechung und ihrer aktuellen und praktischen Bezüge zur Tätigkeit der anderen Staatsgewalten gerade durch Mitarbeiter des Gerichts liegt der besondere Wert dieses Sammelbandes. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with judicial (...) abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

On December 7, 1994, the U.S. District Court of the Northern District of Illinois ruled that ERISA preempts a participant in an ERISA plan from suing the plan's administrator under a state common law theory of respondeat superior ) : at 208). On September 12, 1995, the Seventh Circuit of the U.S. Court of Appeals reversed this decision and ordered that the case be tried in state court ). The court held that the case had been improperly removed to (...) class='Hi'>federal court. The court of appeals stated that the federal court did not have jurisdiction because the plaintiff's claim did not fall within ERISA's provisions.In this case, plaintiff David Rice brought a medical malpractice suit against two doctors who provided treatment to him in accordance with his ERISA insurance plan. (shrink)

This article is currently available as a free download on ingentaconnect.

In two decisions delivered inFebruary and March 2001, the German FederalConstitutional Court voided the maritalagreements struck between a man and a pregnantwoman on the grounds that they were the productof an inequality of bargaining power betweenthe parties. These findings, involving anapplication of the fundamental rightsprovisions of the German Basic Law to privateagreements, demonstrate the creeping competenceof the F.C.C. into the sphere of contractualrelations and an ongoing questioning ofthe traditional public/private law divide. Exploring some of the implications of applyingpublic values and (...) constitutional reviewstandards to private agreements, this notecontextualises the decisions within the debateupon competing (and ultimately colliding)social systems of the family and the market. (shrink)

After years of debate over the importance of ethical conduct in organizations, the federal government has decided to institutionalize ethics as a buffer to prevent legal violations in organizations. The key requirements of the Federal Sentencing Guidelines (FSG) are outlined, and suggested actions managers should adopt to improve ethical compliance are presented. An effective compliance program is more a process and commitment than a specific blueprint for conduct. The organization has the responsibility to create an organizational climate to (...) reduce misconduct. The adoption of a FSG compliance program has the potential to substantially lessen organizational penalties if there is due diligence to prevent misconduct. Federal courts determine the effectiveness of an FSG program after a violation occurs. (shrink)

In Planned Parenthood Affiliates of Michigan v. Engler ), the United States Court of Appeals for the Second Circuit held that § 400.109 of the Social Welfare Act of Michigan ) impermissibly conflicts with the Medicaid Act ) as modified by the 1994 Hyde Amendment ), insofar as the § 400.109 only provides state funding for abortions necessary to save the life of a mother, and not for abortions resulting from rape or incest. The court held that the Hyde Amendment (...) defines medically necessary abortions that must be funded by states participating in the federal Medicaid program, and that the amendment is not merely a federal appropriations bill. (shrink)

O presente artigo se propõe a analisar a relação entre o Supremo Tribunal Federal e os media, e como as notícias jurídicas do Plenário da mais importante Corte do país são transmitidas pela TV Justiça, pelos canais comerciais, e pelos novos media. Ademais, busca-se explorar a influência dos novos media na democratização da informação referente ao Judiciário. Em termos metodológicos, será utilizada abordagem hipotética dedutiva, com base em pesquisa bibliográfica e documental. Não obstante, este trabalho pretende demostrar como os (...) canais comerciais se incumbem de espetacularizar as imagens do Plenário do STF, com intuitos mercadológicos e de lucro. (shrink)

Wallace, Max On 20 June 2012 the High Court of Australia handed down their decision in Willliams v The Commonwealth. The case concerned the question of whether it was unconstitutional for the federal government to fund religious chaplains in public schools. The argument against the funding was on technical, financial grounds. The government had avoided making a law in the parliament to fund the chaplains. That way, they were able to avoid a legal complaint that the funding breached Australia's (...) s.116, the section in the constitution that mimics America's First Amendment. The funding therefore would avoid a major dispute over separation of church and state. (shrink)

Among multiple legal challenges to the Patient Protection and Affordable Care Act (PPACA) is the premise that PPACA's “individual mandate” (requiring all individuals to obtain health insurance by 2014 or face civil penalties) is inviolate of Congress' interstate commerce powers because Congress lacks the power to regulate commercial “inactivity.” Several courts initially considering this argument have rejected it, but federal district courts in Virginia and Florida have concurred, leading to numerous appeals and prospective review of the United (...) States Supreme Court. Despite creative arguments, the dispositive constitutional question is not whether Congress' interstate commerce power extends to commercial inactivity. Rather, it is whether Congress may regulate individual decisions with significant economic ramifications in the interests of protecting and promoting the public's health. This article offers a counter-interpretation of the scope of Congress' interstate commerce power to regulate in furtherance of the public's health. (shrink)

Despite historic efforts to enact the Patient Protection and Affordable Care Act in 2010, national health reform is threatened by multiple legal challenges grounded in constitutional law. Premier among these claims is the premise that PPACA’s “individual mandate” is constitutionally infirm. Attorneys General in Virginia and Florida allege that Congress’ interstate commerce powers do not authorize federal imposition of the individual mandate because Congress lacks the power to regulate commercial “inactivity.” Stated simply, Congress cannot regulate individuals who choose not (...) to obtain health insurance because they are not engaged in a commercial venture. Several courts initially considering this argument have rejected it, but two federal district courts in Virginia and Florida have concurred, leading to numerous appeals and the near promise of United States Supreme Court review. (shrink)

On October 14, 2003, the Supreme Court announced that it would not review a Ninth Circuit Appeals Court ruling that enjoined the federal government from punishing doctors who recommend medical use of marijuana to their patients. The Ninth Circuit case, Conan v.Walters, drew a fine line in distinguishing betweendispensing information and dispensing controlled substances, and held that [p]hysicians must be able to speak frankly and openly to patients under the First Amendments. Although unauthorized use and distribution of marijuana is (...) prohibited, the court found that a doctor s recommendation does not itself constitute illegal conduct that doctors should be free to recommend the use of medical marijuana if based on sincere medical judgment, without fear of retaliation by a government probe or prosecution. (shrink)

In Martin v. Ortho Pharmacetrtical Corp. ), the Supreme Court of Illinois held that, although a federal regulation requires pharmaceutical manufacturers to provide direct warnings to consumers about the dangers associated with oral contraceptives, this regulation does not constitute an exception to the learned intermediary doctrine and the manufacture will not be held strictly liable. The court declined to recognize an exception for manufacturers of contraceptives due to important policy considerations and the legislative intent underlying the learned intermediary doctrine. (...) The doctrine is based on the assumption that prescribing physicians, not pharmaceutical manufacturers, are in the best position to provide direct warnings to patients concerning the dangers associated with prescription drugs. The decision may affect patients whose medical care providers are unable to account for drug propensities or patient susceptibilities. Additionally, patients with forgetful or inarticulate health care providers are at risk. (shrink)

On April 26, 1995, the United States Supreme Court limited the reach of the preemption provision of ERISA in New York State Conference of Blue Cross & Blue Shield Plans v. Tavelers Insurance Co. ). In Travelers, the Supreme Court upheld the validity of a New York statute requiring hospitals to collect surcharges from patients covered by commercial insurers and requiring health maintenance organizations to pay a surcharge to the state's general fund that varies depending on the number of Medicaid-eligible (...) HMO members enrolled. Neither patients insured by Blue Cross/Blue Shield plans nor the plans themselves are similarly charged under the statute. Several commercial insurers and HMOs claimed the surcharges should be preempted under ERISA because they are levied on patients whose insurance or HMO membership premiums are purchased by an ERISA plan.The ERISA preemption clause means that federal regulation, or lack thereof, supersedes state regulation that is related to employee pension and benefit plans. This preemption clause prevents states from changing health care and benefit law for a significant portion of state residents. (shrink)

L’article tente de montrer que l’accès au plus haut niveau de la pratique footballistique est lié de manière indissociable à un ensemble de réussites à court terme pendant que, dans le même temps, l’investissement extrêmement exigeant dans un quotidien de sportif de haut niveau ne peut être supporté sans la projection au long cours dans une carrière professionnelle. Mais la compréhension, l’acceptation et l’insertion dans ce chevauchement des temporalités ne se construit que lentement et par étapes chez les apprentis footballeurs. (...) Pour certains, il ne se construira même jamais. Dès lors, le travail de l’encadrement technique, soucieux d’établir la valeur sportive et économique des futurs joueurs, va consister, à partir d’un jeu autour des procédures d’évaluation et des contrats de formation disponibles, à s’approprier les cadres temporels prescrits par la Fédération Française de Football pour sélectionner et former les individus jugés les plus aptes à entrer sur le marché des footballeurs professionnels. (shrink)

The galvanising purpose of Federation was the creation of the Commonwealth and the distribution of power between it and the former colonies, simultaneously elevated to Statehood. But beyond this simple fact, consensus about Australian federalism has traditionally been elusive and is, if anything, only increasingly so. While the contemporary political debate over federal reform proceeds from a shared sense that our existing arrangements have manifest shortcomings, there is far from unanimity as to which of its particular features are strengths, (...) and which are deficiencies. The structure of this paper is as follows. In Part II, the range of understandings as to the character of the federal relationship between Australian governments is canvassed. Consideration is given to the views of the Constitution’s Framers and commentators, but most centrally to members of the High Court since these have brought about great change in federal arrangements. The significance of the Court’s marked preference for adhering only to constitutional structure and its inability or unwillingness to develop ‘a federal jurisprudence’ is examined in two respects. First, the effect of the Court’s arid Engineers’ Case methodology has been to reject any suggestion that fidelity to a concept of ‘federal balance’ is consistent with both the contents and purpose of the Constitution and also the principles of divided government. Particular consideration is given to the limitations of a commitment to federalism in only a structural sense, as revealed by the judicial reasons of the majority and dissenting judges in the recent case of New South Wales v Commonwealth. Second, the tension between competing assumptions of the kind of federal system established by the Commonwealth Constitution has produced an unstable and uncertain environment for the development of cooperative schemes between the Commonwealth and States. In Part III we consider how an attempt to ‘constitutionalise’ the relationship between the tiers of government as one underpinned by cooperation and respect would impact on the Court’s approach. Drawing on foreign constitutions, and adapting these in light of Australia’s politico-legal conditions and history, we suggest how a commitment to cooperative federalism might best be shaped for possible inclusion in the Commonwealth Constitution. (shrink)

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while rejecting any discussion of active (...) assistance to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate. (shrink)

I would like to begin by discussing the legal and administrative framework of the role of the federal government in public health. At the heart of it is, of course, the Constitution. At the Department of Health and Human Services we depend, as does much of the federal government, on our power to regulate interstate commerce. Since the Supreme Court in 1942 removed essentially any restraint from the meaning of interstate commerce in Wickard v. Filburn, the federal (...) government has been regulating with wide latitude, in spite of small and, arguably, equivocal reverses in recent years. However, even though the Supreme Court no longer provides any real constitutional check on the federal government's interstate commerce power, some other restraints persist. For example, many parts of the health system have traditionally been deemed inherently state functions, such as the licensing and disciplining of doctors, nurses, and pharmacists, as well as the practice of medicine itself. (shrink)

I would like to begin by discussing the legal and administrative framework of the role of the federal government in public health. At the heart of it is, of course, the Constitution. At the Department of Health and Human Services we depend, as does much of the federal government, on our power to regulate interstate commerce. Since the Supreme Court in 1942 removed essentially any restraint from the meaning of interstate commerce in Wickard v. Filburn, the federal (...) government has been regulating with wide latitude, in spite of small and, arguably, equivocal reverses in recent years. However, even though the Supreme Court no longer provides any real constitutional check on the federal government's interstate commerce power, some other restraints persist. For example, many parts of the health system have traditionally been deemed inherently state functions, such as the licensing and disciplining of doctors, nurses, and pharmacists, as well as the practice of medicine itself. (shrink)

The U.S. Court of Appeals for the District of Columbia upheld, in Presbyterian Medical Center of the University of Pennsylvania Health System v. Shalala, 170 F.3d 1146, a federal district court ruling granting summary judgment to the Department of Health and Human Services in a case in which Presbyterian Medical Center challenged Medicare's requirement of contemporaneous documentation of $828,000 in graduate medical education expenses prior to increasing reimbursement amounts. DHHS Secretary Donna Shalala denied PMC's request for reimbursement for increased (...) GME costs. The appellants then brought suit in federal court challenging the legality of an interpretative rule that requires requested increases in reimbursement to be supported by contemporaneous documentation. PMC also alleged that an error was made in the administrative proceedings to prejudice its claims because Aetna, the hospital's fiscal intermediary, failed to provide the hospital with a written report explaining why it was denied the GME reimbursement. (shrink)

A Constituição Federal brasileira fixou um desenho estrutural de competências que permite uma ampla atuação do Supremo Tribunal Federal sobre a vida social e os ramos de governo. No entanto, a análise da teoria institucionalista estratégica sobre os julgados relativos ao processo legislativo federal demonstra que não há um panorama assimétrico entre os departamentos estatais. Na verdade, o jogo entre poderes pode criar cenários conjunturais que libertam decisões baseadas na preferência individual dos julgadores ou que restringem a (...) autonomia da Corte quando críticas ou retaliações externas ameaçam sua permanência e autoridade. (shrink)