Professor at @UMichLaw, former Chief Legal Counsel to @GovWhitmer
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Jun 6, 2023 • 19 tweets • 4 min read
So Merck has sued the Biden administration over the drug negotiation provisions in the Inflation Reduction Act. What’s it arguing? And are those arguments any good?
First, it says that Congress is “taking” its property—the drugs that it has patented and that it manufactures—by refusing to pay sticker price. And, under the Fifth Amendment, the government can’t take private property without “just compensation.
Mar 31, 2023 • 9 tweets • 3 min read
One very surprising implication of Judge O'Connor's opinion striking down the preventive services mandate? It may *expand* access to zero-dollar mammograms.
Seriously! /1
The most recent breast cancer screening guideline says that women 50+ should get a mammogram every two years. But for women 40 to 49, the current recommendation has a C rating -- which means insurers are free to impose cost-sharing. /2
Mar 31, 2023 • 4 tweets • 2 min read
This @nytimes story on Judge O'Connor's decision misses a key point. The decision only applies to PSTF guidelines issued *after 2010*.
Mammographies for women 50-74 were covered with a "B" rating in 2009, so no one's going to lose coverage for them. uspreventiveservicestaskforce.org/uspstf/recomme…
Screening for heart disease? A B rating in 2003.
Pap smears? An A rating in 2008.
Tobacco cessation counseling? An A rating in 2009.
I've been fielding a bunch of questions about Judge O'Connor's decision on the preventive services mandate and, for the very curious, I'll answer a few of them here.
First, when does the decision take effect?
Technically, immediately. But the government will surely appeal and ask for a stay pending appeal. Judge O'Connor, the Fifth Circuit, or the Supreme Court will likely enter a stay, though that is not a sure thing.
Mar 30, 2023 • 28 tweets • 7 min read
As expected, Judge O'Connor has struck down the Affordable Care Act's preventive services mandate. His decision applies nationwide. Reviewing the decision now; will highlight key portions as I read. /1 storage.courtlistener.com/recap/gov.usco…
/2 This decision was not unexpected. Judge O'Connor had already ruled that the preventive services mandate was unconstitutional. This latest decision resolves the proper scope of relief.
Feb 10, 2023 • 7 tweets • 1 min read
1/ Niche thread here about technological change and the Fed Rules of Civ Pro, growing out of class:
Under Rule 32, you can use depositions at trial only under limited circumstances. They're considered hearsay and we've got a strong preference for live testimony.
2/ Historically, that strong preference made a ton of sense. Reading a deposition transcript from the witness stand is stultifying. Much better to have the witness present.
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