Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the "individual mandate." The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number of lawsuits contending that it is unconstitutional. It is not our purpose in this article to discuss its constitutionality. Rather, this piece focuses on the viability of one of the justifications that often is put forth for the adoption of the individual mandate: the "free-rider" problem.

The Patient Protection and Affordable Care Act of 2010 ("ACA") raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled "Maintenance of Minimum Essential Coverage," but better known as the "individual mandate," requires most Americans to obtain health insurance for themselves and their dependents by 2014. We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation's health-care system suffers from countless problems. By improving quality, controlling costs, and extending coverage to the uninsured, the ACA means to address many of those problems. And it's about time. The United States has lower insurance coverage rates and lower life expectancy than most developed countries, and our system does poorly on several dimensions of quality. Worse still, we spend much more on health care than any other country-$2.5 trillion, or 17.6 percent of gross domestic product, in 2009. These measures of total spending mask grave distributional concerns: 52 million people went without insurance during some part of 2010.

This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks whether a reasonable person would, given the circumstances, believe that she is free to leave. The issue posed by J.D.B., then, was whether age counts as part of a suspect's "circumstances" for Miranda purposes. Unfortunately, the Court's June opinion managed only to compound the confusion and, in an ironic twist, did so while extolling the virtue of providing "clear guidance to the police." This Essay critically examines the J.D.B. opinion, using it as a lens to both critique the traditional objective/subjective distinction and articulate a more honest interpretation of the reasonable person test-one based on the uncomfortable truth that the test is, at its core, arbitrary.

The recently enacted Leahy-Smith America Invents Act (“AIA”) represents the most significant legislative event affecting patent law and practice in more than half a century. In addressing the AIA, scholars and policymakers have focused with an almost laser-like exclusivity on the AIA’s imposition of a first-to-file-or-first-to-publicly-disclose system, which replaces an over 200-year-old first-to-invent tradition. This myopia, we suggest, overlooks a part of the AIA that could hold a substantially greater potential to jeopardize American innovation, job creation, and economic competitiveness: the imposition of a mechanism for supplemental examination. 

The Patient Protection and Affordable Care Act of 2010 has stirred considerable controversy. In the public debate over the program, many of its proponents have defended it by focusing on what is sometimes called the “free-rider” problem. In a prior article, we contended that the free-rider problem has been greatly exaggerated and was not a significant factor in the congressional decision to adopt the Act.  We maintained that the free-rider issue is a red herring advanced to trigger an emotional attraction to the Act and distract attention from the actual issues that favor and disfavor its adoption.In a recently published article, Professors Nicholas Bagley and Jill Horwitz responded to our article. For the sake of convenience, we will sometimes refer to the two professors collectively as “the professors.” In addition to addressing the free-rider issue, they also made a number of points in defense of the Act. We will concentrate on responding to those items that we discussed in our prior article and deal with only some of their broader points. While not mentioned by the professors, one matter worth noting is the effect that the cost of implementing the Act may have on the economy. While cost is not the only potentially unfavorable feature of the medical care program that the Act creates, its economic impact should weigh heavily in evaluating its merits.

A major objection to the Act is the belief that it will impose a huge cost at a time when the government should be reducing expenditures. Proponents dispute this objection: based on a set of assumptions as to future events and behavior, the government maintains that the program will generate a surplus. We are not alone in believing that the assumptions on which that projection is made are unrealistic and that the program will greatly impair the economy. For example, the Act requires a reduction in Medicare disbursements and anticipates those savings will offset some of the Act’s costs, yet there are reasons to suspect that the proposed cuts in Medicare will never materialize or will be repealed when the consequence of making them surfaces. While we also will not grapple with that issue, we are deeply skeptical of the government’s contention. For this reason, we choose to refer to the Act as the “Unaffordable Health Act” (or the “Act”).

One hates to seem ungrateful. Judges and scholars frequently call for Congress to fix problems in the law of jurisdiction and procedure, and Congress doesn't usually intervene. In that light, the Jurisdiction and Venue Clarification Act ("JVCA"),[1] signed into law on December 7, 2011, ought to be a welcome improvement. And hopefully, on balance, it will be. But in at least one area that it attempts to clarify, the JVCA leaves much to be desired.

Professor Arthur Hellman has called the JVCA "the most far-reaching package of revisions to the Judicial Code since the Judicial Improvements Act of 1990."[2] The Act addresses a variety of removal issues-including unrelated federal and state claims, multiple defendants, removal of criminal cases, and the amount in controversy-and makes several major changes to the law of venue. This essay addresses one of those removal issues: the amount in controversy in a case removed from state court. I argue that there are at least three respects in which the JVCA failed to adequately clarify the law of diversity removal jurisdiction.

For all the drama surrounding the Commerce Clause challenge to the individual mandate provision of the Patient Protection and Affordable Care Act ("PPACA"), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the Supreme Court will abide by its previously announced doctrines and uphold the individual mandate. So I mean to engage U.S. Department of Health and Human Services v. Florida as the easy case it is and to explore an underappreciated feature of how it came to be so easy. 

Under immigration law, an alien smuggling offense takes place when one knowingly encourages, induces, assists, abets, or aids an alien to enter or to try to enter the United States. Committing this offense is cause for either removal or inadmissibility charges under the Immigration and Nationality Act ("INA"). In addition, a federal criminal conviction for alien smuggling under INA section 274(a)(1)(A) or 274(a)(2) classifies the immigrant as an aggravated felon, leading to near certain deportation.

Although the INA levies harsh penalties against smugglers, the practice has not showed any signs of slowing. In 2010, the United States Border Patrol apprehended 463,382 individuals smuggled across the border, including 8,905 smugglers. Of the smugglers, 3,027 were deemed deportable under the INA. The types of smugglers who are seized vary "from self-smugglers [that is, migrants illegally crossing the border on their own] . . . , to local-level individual smuggling entrepreneurs [family-based smugglers]  . . . , to highly organized and sophisticated transnational smuggling networks . . . ."

Despite the severe penalties imposed on most categories of smugglers, a small refuge exists for some family-based smugglers. All three of the major INA sections punishing alien smuggling include either a discretionary waiver or an outright exception for a smuggler who is the spouse, child, or parent of the smugglee. These nuclear family exemptions provide a safe haven for some immigrants; however, strictly limiting this waiver to three relationship categories fails to protect all aliens deserving of congressional exemption.

This paper argues that in order for the U.S. Congress to faithfully carry out the purposes behind these exemptions, it must expand the family exception and waivers to include all close genetic relatives when the smugglee is a minor child. Using the procedural history and legislative framework of the current exemptions, Part II defines the three primary purposes for excluding parents, spouses, and children from immigration smuggling prosecutions. Part III examines the current enforcement practices in the area of family-based alien smuggling, drawing on empirical data from recent case law, anecdotal accounts, and prosecutorial policies established by the Department of Homeland Security and United States Attorneys Offices. Finally, Part IV suggests a statutory or regulatory modification to the current exemptions that would better serve Congress's stated goals for these statutory exclusions.

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about privacy paramount, resulted in circular logic, and over time diminished Fourth Amendment protection. Jones reinvigorates the pre-1967 property-based framework. The case indicates that a governmental intrusion is a search if it violates a reasonable expectation of privacy or constitutes a physical intrusion of property. Jones is itself rather limited in scope, but it could provide the foundation for a paradigm shift in the interpretation of the Fourth Amendment. Jones’s potential impact is far broader than outcomes in particular Fourth Amendment cases. Jones should restore our faith in the Fourth Amendment—not necessarily because it is more protective of Fourth Amendment rights, but because it gives the Justices a more concrete framework to determine whether the government has executed a search.

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions about the permissible uses of precedent. In brief, under Mitchell's analysis, the Supremacy Clause forbids using precedent (1) to invalidate congressional statutes (because congressional statutes are the supreme law of the land while prior court decisions are not) or (2) to uphold constitutionally challenged state laws (because the Constitution is the supreme law of the land while prior court decisions and state-law interpretations of the Constitution are not). Yet, according to Mitchell, the Supremacy Clause does not forbid using precedent (3) to uphold congressional statutes (because both the Constitution and congressional statutes are equally supreme, and there is no constitutional mandate to prefer one to the other) or (4) to invalidate state laws (because neither prior court decisions nor state laws are supreme, and there is no constitutional mandate to prefer one to the other). The article is an eminently worthy contribution to a vibrant debate, and I am delighted to have the opportunity to respond to it-as well as to clarify some ambiguities in my own prior work on precedent.