York Law Research Articles

The impacts of New York's balance billing regulation on ground ambulance pricing.

To examine the effects of New York's surprise billing regulations on price changes by emergency ground ambulance service providers. We exploited a natural experiment using a difference-in-differences design with randomization inference (RI) to examine the effects of New York state regulations on the prices of emergency ground ambulances, analyzing 2012-2019 commercial claims data. In March 2015, New York implemented a law protecting patients from surprise out-of-network (OON) balance bills, including ground ambulance services. New York's policy tied OON ground ambulance reimbursements to usual, customary, and reasonable rates that typically reflect charges. The control group consisted of similar states that never enacted surprise billing laws. Although self-funded plans are exempted from state laws, we also examined for spillover effects on self-funded plans. Multi-payer national commercial plan claims data were used. The study sample was selected by isolating claims involving an emergency ground ambulance activation code. The event study findings indicated that New York's law led to a continuous increase in prices, relative to controls. The law's implementation was associated with an overall emergency ground ambulance price increase of 13 percentage points (RI p-value: 0.07). We observed a 21-percentage-point increase in in-network prices (RI p-value: 0.07) and a 19-percentage-point increase in OON prices (RI p-value: 0.07), relative to controls, for fully insured health plans. Similar changes in overall prices and in in-network prices were observed in self-insured plans. Last, our study did not find statistically significant evidence of changes in out-of-pocket cost-sharing amounts under New York's regulation. Balance billing laws based on charges can lead to price increases for emergency ground ambulance services. Legislation intended to inoculate patients from these surprise billings for ground ambulance transportation may have unintended consequences for costs of care. Emergency ground ambulances are a major source of surprise billing. The federal No Surprises Act of 2020 excluded emergency ground ambulance services. Some states have regulations that prohibit out-of-network balance bills for ground ambulance services. The study provides the first empirical evidence on the potential impacts of regulations on price changes among emergency ground ambulance providers. The study offers evidence of state policies' effects on fully insured plans and potential spillover effects on self-funded plans. Experiences from New York's state ambulance out-of-network billing regulation indicate that tying reimbursement policies to charges may have the unintended consequences of increasing health care costs.

Ultimate beneficial holders of offshore bonds are contingent creditors for winding up proceedings

There has been a recent flurry of decisions from offshore common law jurisdictions dealing with the issue of whether the ultimate beneficial holder in a New York law bond structure has standing as a “ contingent creditor” to present a winding up petition (or the local procedural equivalent) against the Issuer. First-instance courts in Bermuda, the Cayman Islands, and Hong Kong have held that the ultimate beneficial holder is not a contingent creditor for this purpose. The BVI Commercial Court has held that it is. The BVI decision had been appealed by the company, but this has now been withdrawn. In view of the lack of consideration of the issue at the appellate level, this article examines the reasoning of the decisions in detail. It concludes that the approach taken in the BVI is correct. The approach taken in the other jurisdictions is flawed, based on an erroneous conflation between privity of contract and creditor status and relies on unsound case law that has been rejected by more recent authority from the UK Supreme Court.

The Venezuelan Constitutional Provisions on Public National Interest Contracts and Their Implications in the Public Debt Ruled by the New York Law

The Venezuelan Constitutional Provisions on Public National Interest Contracts and Their Implications in the Public Debt Ruled by the New York Law

Starting gendered career pathways early? Differences between women and men students in optional module composition among UK law school undergraduates

ABSTRACT Women’s inequalities in the legal profession are an enduring concern. Women are over-represented in junior positions and under-represented in senior roles, especially in large corporate firms. This pattern is compounded for women from Black and minority ethnic backgrounds in comparison to both men of all ethnicities and white women. This is informed not by ability, but by masculinity-privileging working cultures and practices. Women legal academics are also under-represented in senior roles. However, less is understood about women law students’ experiences, particularly in the UK and in recent research. This article reports on a new project which explored undergraduate student allocation on module options at York Law School, University of York, UK. There were marked gender differences in student composition in just over half (36) of the 66 different optional modules between 2014 and 2022. Women were under-represented on modules relating to commercial, corporate and financial law and over-represented on modules relating to family, health, social welfare, gender and sexuality. While there are many possible causal factors, there is clear resonance with the literature on gender inequalities in the legal profession and legal academia. The curriculum and careers guidance implications are considered, and a research agenda proposed.

The Sewing Girl's Tale: A Story of Crime and Consequences in Revolutionary America

The Sewing Girl's Tale: A Story of Crime and Consequences in Revolutionary America

Governing ghostbots

This article discusses the legal implications of a novel phenomenon, namely, digital reincarnations of deceased persons, sometimes known as post-mortem avatars, deepfakes, replicas, holographs, or chatbots. To elide these multiple names, we use the term 'ghostbots'. The piece is an early attempt to discuss the potential social and individual harms, roughly grouped around notions of privacy (including post-mortem privacy), property, personal data and reputation, arising from ghostbots, how they are regulated and whether they need to be adequately regulated further. For reasons of space and focus, the article does not deal with copyright implications, fraud, consumer protection, tort, product liability, and pornography laws, including the non-consensual use of intimate images (‘revenge porn’). This paper focuses on law, although we fully acknowledge and refer to the role of philosophy and ethics in this domain.We canvas two interesting legal developments with implications for ghostbots, namely, the proposed EU Artificial Intelligence (AI) Act and the 2021 New York law amending publicity rights to protect the rights of celebrities whose personality is used in post-mortem ‘replicas’. The latter especially evidences a remarkable shift from the norm we have chronicled in previous articles of no respect for post-mortem privacy to a growing recognition that personality rights do need protection post-mortem in a world where pop stars and actors are routinely re-created using AI. While the legislative motivation here may still be primarily to protect economic interests, we argue it also shows a concern for dignitary and privacy interests.Given the apparent concern for the appropriation of personality post-mortem, possibly in defiance or ignorance of what the deceased would have wished, we propose an early solution to regulate the rise of ghostbots, namely an enforceable ‘do not bot me’ clause in analogue or digital wills.

The View from Pompey’s Head; But for Whom Charlie

The View from Pompey’s Head; But for Whom Charlie

Congress Passes First Significant Gun Safety Bill in Decades

Congress Passes First Significant Gun Safety Bill in Decades

The Rise and Fall of Morris Ernst, Free Speech Renegade by Samantha Barbas

Reviewed by: The Rise and Fall of Morris Ernst, Free Speech Renegade by Samantha Barbas David G. Dalin (bio) The Rise and Fall of Morris Ernst, Free Speech Renegade. By Samantha Barbas. Chicago: University of Chicago Press, 2021. 424 pp. Morris Ernst was one of the best-known liberal lawyers and most celebrated civil libertarians in America, serving for many years as chief legal counsel of the American Civil Liberties Union (ACLU) and achieving fame as an opponent of literary censorship and representative of Margaret Sanger and Planned Parenthood. He was born in Uniontown, Alabama, in 1888, and moved to Manhattan with his family two years later. After attending the Horace Mann School, he graduated from Williams College and three years later from New York Law School, which he attended as a night student. In 1915, together with one of his Williams classmates, Ernst co-founded the New York City law firm of Greenbaum, Wolff and Ernst, with which he remained associated until his death in 1976. During the 1920s, influenced by the landmark free speech jurisprudence of Supreme Court Justice Louis D. Brandeis, who would become his friend, Ernst began to add free speech cases to his growing legal practice. In 1927 Ernst joined the ACLU board and would remain one of the best known and most successful ACLU attorneys for the next forty years. Greenbaum, Wolff and Ernst became the "preeminent law firm for the left," as the law firm's "tremendous commercial practice allowed it to represent liberal causes at reduced rate or pro bono" (79). It "was also gaining a reputation as a literary law firm," becoming counsel for several major magazines … including the New Yorker and the Nation, which shared many board members with the ACLU" (79). As a civil liberties lawyer, Ernst achieved national prominence and notoriety in 1934 when he successfully defended James Joyce's highly controversial novel Ulysses against charges of obscenity. As Barbas notes, "Joyce's novel had a long history of suppression in the United States," with the post office confiscating and burning copies, though that did not stop Ulysses from being widely read (152). Ernst, a brilliantly flamboyant attorney whom Barbas describes as "a civil liberties lawyer who adored controversy," declared that Ulysses was the "only volume of literary importance still under a ban" in the country (1). He persuaded the judge that Ulysses was not obscene – that it would not corrupt even those members of society "whose minds are open to such immoral influences" (1). Following his 1934 court victory, Ulysses became [End Page 305] a best seller, and the case, while a triumph in the battle against literary and artistic censorship, also was personally enriching for Ernst, who had made a deal with Random House that if he won he would earn a royalty on every copy sold. A liberal Democrat, throughout his legal career Ernst received major political appointments from Democratic Party leaders, which enhanced his prominence and influence in American politics and public life. In 1929, Ernst, who was considered one of the state's outstanding insurance experts, was appointed by New York Governor Franklin D. Roosevelt to the state insurance commission charged with regulating all insurance business in New York. Three years later, FDR appointed Ernst to the New York State Banking Board, a powerful board established in 1932 to set rules for the regulation of the state's financial institutions. By the late 1930s, Ernst was being mentioned by the columnist Drew Pearson as a candidate for mayor of New York. In 1946, Ernst was appointed by President Harry Truman to the newly established President's Commission on Civil Rights. Though Barbas claims that Ernst remained proud of his Jewish heritage, there is almost no discussion of it in this book. Ernst apparently followed in the footsteps of his parents who were mostly religiously nonobservant, and he became estranged from Judaism as a teenager, never again setting foot inside a synagogue and holding a lifelong conviction that religion was irrational. As Barbas discusses in the second part of this book, Ernst was a man of stark contradictions, waging an intensely personal battle against communism and publicly supporting FBI Director J. Edgar Hoover's...

The Jewish World of Alexander Hamilton by Andrew Porwancher

Reviewed by: The Jewish World of Alexander Hamilton by Andrew Porwancher Stanley Mirvis Andrew Porwancher, The Jewish World of Alexander Hamilton (Princeton Univ. Press, 2021). Pp. 272; 19 b/w photos. $27.95 cloth. I regularly speak in public about colonial American Jewish communities. It has become almost an inevitability that someone asks me the question: "is it true that Hamilton was Jewish?" My initial reaction, admittedly elitist, was to be dismissive. Would someone be asking me this question if not for the popularity of Lin-Manuel Miranda's Hamilton musical (which, in full disclosure, I have not seen)? I was aware that Hamilton was born and raised in the West Indies, and of a tradition that he had attended a Jewish school. But that was the full extent of my knowledge on the matter. Armed only with this sliver of information, I became increasingly puzzled by the question. How does one make the leap from Hamilton possibly having attended a Jewish school in Nevis—whatever that might have been—to becoming Jewish? My instinctual conclusion was that such a logic distortion could only be rooted in antisemitism. That is, as America's founding banker and first Secretary of the Treasury, Hamilton must have been a Jew. After all, nobody was trying to claim Jefferson, Madison, or Adams as Jewish. With this assumption I began to warn those asking the question about the potentially antisemitic overtones of what they were asking. After reading Andrew Porwancher's exciting new book The Jewish World of Alexander Hamilton, I now realize that there is much more to this question than I had previously assumed. I was astonished by how differently Porwancher approached the issue of Hamilton's Jewishness. Whereas for me, it was puzzling, even troubling, how much Jewishness people assigned to Hamilton, for Porwancher, the anti-Jewish bias rested in the extent to which previous Hamilton scholars had overlooked his Jewishness. Porwancher believes that generations of historians have been reluctant, even unwilling, to admit that there was a "Jewish"—so to speak—Founding Father. Porwancher has successfully made the case that there is much more substance to Hamilton's Jewishness than simplistic legends about his attendance at a Jewish school or antisemitic assumptions about Jewish predilections for finance. He makes an almost Freudian argument that Hamilton's exposure to Jews and Judaism in the Caribbean and especially his mother's likely affiliation with the Judaism of her first husband, was foundational in shaping the rest of his career. It was particularly informative for Hamilton's consistently favorable disposition toward Jews in debates over religious tolerance. Porwancher convincingly demonstrates that Hamilton was the strongest advocate for Jewish civil liberties and the most legitimately philosemitic of the Founding Fathers. The true value of the book, I believe, rests not in Porwancher's claim of Hamilton's own sense of Jewishness, the subject of the first two chapters, but rather in expertly situating Hamilton in the debates over religious tolerance. Hamilton is generally overlooked, compared to other Founding Fathers, in the historical discourse about the origins and ideologies of religious tolerance in America. For Porwancher, Hamilton's posture toward Jews is a powerful barometer of his dedication to true religious tolerance in the Early Republic. He demonstrates that, unlike every other Founding Father—except Washington—Hamilton was the only [End Page 578] one who didn't express some ambivalence about or even outright hostility toward Jews. Not only was Hamilton free of anti-Jewish stereotyping and bigotry, but he also maintained lifelong friendships and partnerships with Jews who were a crucial part of his New York law practice both before and after his government service. The Jewish World of Alexander Hamilton is an excellent Jewish communal history of the Early Republic, especially in New York City. Given their demographic paucity, Jews are often a footnote in studies of the early American experience. Jewish Studies, alternatively, sometimes treats Jews in isolation. Through the Hamiltonian lens, Porwancher has struck a good balance. He offers valuable profiles of well-known figures such as Haym Salomon and Gershom Mendes Seixas as well as lesser-known figures such as Isaac Moses and Moses Myers. His terrific discussion of state-constitutional...

NY opioid settlement money in danger of being co‐opted by the state

Advocates across the country have been eagerly awaiting proceeds from lawsuits against the opioid pharmaceutical industry. The New York State legislature passed a bill designed to make sure that the opioid settlement money did not suffer the same fate as the Master Settlement Agreement between the tobacco industry and states' attorneys general in the late ‘90s in which the money that was supposed to go to treatment for tobacco‐related diseases went instead into the state coffers (see Opioid settlement money for treatment? It's up to the states, ADAW Sept. 13, 2021; https://onlinelibrary.wiley.com/doi/10.1002/adaw.33186?af=R). The legislature guaranteed that an independent advisory board would make recommendations on how the opioid settlement money would be spent (see New York law paves way for distributing opioid settlement funds to treatment, ADAW July 11, 2021; https://onlinelibrary.wiley.com/doi/10.1002/adaw.33127). But the first batch of that money, $208 million, has apparently been disappearing into a state‐run secret system in which the advisory board is being shafted. The money is shepherded by the Office of Addiction Services and Supports (OASAS).

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

Majority Rules: Establishing Postamajority Support to Disabled Children in New York

AbstractMany families in New York have disabled children who are chronically dependent on others for care. Yet, the State is in the minority of jurisdictions that fails to adequately recognize a parental duty to support a disabled adult child. New York law generally terminates a parent's legal duty to provide support once his or her child reaches the age of majority. This Note proposes adopting legislation in New York to enforce an indefinite postmajority support order if: (1) the child became disabled prior to his or her eighteenth birthday and (2) the child is incapable of becoming self‐sufficient.

Medicolegal Sidebar: Are Implant Sales Reps in the Operating Room Legally Untouchable?

Medicolegal Sidebar: Are Implant Sales Reps in the Operating Room Legally Untouchable?

Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints

Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints

AT LAST A SOUTH AFRICAN PROPER LAW OF DELICT Burchell v Anglin 2010 3 SA 48 (ECG)

The laws of defamation all over the world share a common denominator – the balancing of two basic human rights: the right to freedom of expression and the right to reputation. In spite of this common objective, the laws pertaining to defamation often differ substantially from country to country and courts are often reluctant to apply legal rules or recognize judgments of foreign courts in this regard. Until recently the question as to which law to apply in cases involving delict was neglected in most legal systems. Although this position has changed in many countries as a result of technological development as well as modern communication systems, South African choice of law in delict remained almost non-existent. In spite of the prevalence of the lex fori as connecting factor under the influence of Von Savigny in the past, and until recently in England, it is today generally accepted that the lex loci delicti should, at least as a point of departure, be used as the connecting factor in delict. As Forsyth points out, the application of the lex loci delicti is in accord with the locus regit actum principle as well as the vested rights theory. The application of the lex loci delicti is not without problems however. One problem is that the place where the delict was committed is not always clear. The elements constituting the delict may have their origin in different jurisdictions. A product manufactured in one country, may cause damage in another. Is the lex loci delicti the place where the conduct (manufacturing) took place or the place where the damage was caused? Moreover, harm may be caused in different countries where the defective products are available. Another example is defamation. A defamatory statementpublished in one country may cause damage in another jurisdiction. The problem becomes even more prevalent where a defamatory statement is uploaded on the Internet. A statement uploaded on a server in one country can be and generally is accessible in a multiplicity of countries. To complicate matters further, the statement may cause pecuniary damage in one or more countries and personality infringement in another. Moreover, because the requirements for defamation are closely linked to public policy and a country’s attitude towards the protection of freedom of expression, the statement may be regarded as defamatory in one country but not in another. A second problem is that the lex loci delicti may be perfectly clear, but may be almost irrelevant. The typical example is illustrated in the American case of Babcock v Jackson (191 NE 2d 279 (1963)), where a car, registered and insured in New York with driver and passengers resident in New York, left the road in Ontario during an over-the-border drive with resultant injury to one of the passengers. In this scenario the place where the delict occurred is clearly Ontario but this single fact is less significant than all the other factors that have connection with the delict and the parties, namely New York. The lex loci delicti rule fails to assign an appropriate system in this type of case. That is the reason why the New York court in Babcock applied New York law. In South Africa very little case law exists regarding the choice of law in delict and, until now, regarding choice-of-law in defamation. The few casesthat were reported did not deal with the matter satisfactorily. The matter is therefore still very much res nova and open to our courts to break new ground. This is exactly why the judgment of Crouse AJ in Burchell v Anglin (2010 3 SA 48 (ECG)) can be regarded asa ground-breaking decision.

OUR ANTI-KOREMATSU

OUR ANTI-<i>KOREMATSU</i>

New York law paves way for distributing opioid settlement funds to treatment

The stage is set for settlement money from state lawsuits against pharmaceutical companies to go directly to treatment and recovery. The stage is New York, where last week New York Gov. Andrew Cuomo did not veto, as had been expected, just such a law.

The Legal and Administrative Environment for Pennsylvania’s Bid to Join RGGI

In 2019, Pennsylvania Governor Tom Wolf ordered the Pennsylvania Department of Environmental Protection (DEP) to “develop and present to the Pennsylvania Environmental Quality Board [EQB] a proposed rulemaking package to abate, control, or limit carbon dioxide emissions from fossil-fuel-fired electric power generators” under the Pennsylvania Air Pollution Control Act (APCA). The rulemaking contemplated by the order would accomplish this end by, among other things, establishing a cap-and-trade system for carbon dioxide that can be integrated with other states’ cap-and-trade programs under the Regional Greenhouse Gas Initiative (RGGI) model rules. The order also asked DEP to work the Pennsylvania Public Utility Commission and the regional transmission organization encompassing all of Pennsylvania (PJM Interconnection) to “promote the integration” of the PA cap-and-trade rules in a “manner that preserves orderly and competitive economic dispatch within PJM and minimizes emissions leakage.” Almost immediately after the order, speculation began about potential legal barriers to achieving the goals set out by Governor Wolf. This white paper closely examines a set of legal questions that are likely to arise in litigation about DEP’s and EQB’s authority and discretion to promulgate rules in accordance with the order under existing laws. While it is difficult to anticipate exactly what kinds of challenges might emerge, especially since DEP has not yet finalized its approach, in general the challenges will likely emerge in four categories of issues : First, it is likely that arguments will be made that PA’s cap-and-trade system would be an unconstitutional tax on electric power generators, either because it imposes a carbon budget with financial consequences for affected firms that choose to comply by implementing carbon dioxide mitigation measures or because allowance auctions would result in financial payments by affected firms to come into compliance through the purchase of allowances. Such a “tax,” promulgated by the EQB, might be argued to violate the Pennsylvania separation of powers principle because it amounts to executive taxation. Second, even assuming that PA’s cap-and-trade is not an unauthorized tax, arguments may be made that a cap-and-trade program for carbon dioxide is not within the scope of delegated rulemaking authority under the APCA, and that EQB could only promulgate such a program with new authorizing legislation. Again, this would be framed as a violation of the Pennsylvania separation of powers principle. Third, separate and apart from the issue of whether carbon dioxide allowance auctions may be considered an unauthorized tax or beyond the scope of legislative authorization, arguments may be made about the precise scope of DEP’s authority to collect the revenues from auctions and use it for particular programmatic purposes. Finally, to the extent that DEP and EQB eventually integrate measures designed to minimize emissions leakage across state lines, challengers may argue that the regulations violate the Dormant Commerce Clause of the U.S. Constitution by impermissibly discriminating against inter-state commerce and trade. This white paper provides essential background understanding for each of these potential disputes, analyzes the potential arguments that might be leveraged for or against the agencies’ authority and discretion to create a robust cap-and-trade system without any additional legislative action, and concludes that the agencies have ample authority under existing law to create the program and join RGGI. The analysis focuses on Pennsylvania law and U.S. constitutional law, but also draws heavily from a survey of relevant New York laws, as New York is the only other state to have entered RGGI administratively, making it a particularly useful comparison for Pennsylvania’s attempt to do the same. It also draws more generally on state authorities from California, Delaware, New Jersey, and other states, but these treatments of cap-and-trade systems are not directly controlling in Pennsylvania and have only persuasive value.

New York law to end solitary confinement for SMI, promote rehabilitation

Following eight years of advocacy to end solitary confinement for people with serious mental illness, and both the mental and physical harm facing thousands of New Yorkers, many of whom are Black and Latinx, advocacy groups are hailing landmark legislation signed into law by Gov. Andrew Cuomo that reforms the state's criminal justice system and adds rehabilitation to its services and settings.