scholarly journals Medicaid Waivers, Administrative Authority, and the Shadow of Malingering

2021 ◽  
Vol 49 (3) ◽  
pp. 394-400
Author(s):  
Nicole Huberfeld
Keyword(s):  
Supreme Court ◽  
Health Equity ◽  
Personal Responsibility ◽  
Health Policies ◽  
Administrative Discretion ◽  
Administrative Authority ◽  
Work Requirements ◽  
The Road ◽  
Medicaid Waivers ◽  
The Supreme Court

AbstractFrom 2018 through 2020, HHS approved state Medicaid demonstration waivers to impose new eligibility conditions such as work requirements, connecting current “personal responsibility” rhetoric and historical suspicion of malingering. The Biden administration reversed course but advocated to the Supreme Court for expansive administrative discretion. This approach supports health equity now but could enable reemergence of restrictive health policies down the road.

scholarly journals Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity

Daedalus ◽  
2022 ◽  
Vol 151 (1) ◽  
pp. 170-180
Author(s):  
Jonathan Simon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Supreme Court Decision ◽  
Security Systems ◽  
Criminal Justice Reform ◽  
The Road ◽  
A Value ◽  
The Supreme Court ◽  
Penal State ◽  
Decent Society

Abstract Human dignity as a value to guide criminal justice reform emerged strikingly in the 2011 Supreme Court decision in Brown v. Plata. But with Justice Kennedy retired and courts generally reluctant to go far down the road to practical reforms, its future lies in the political realm shaping policy at the local, state, and national levels. For human dignity to be effective politically and in forming policy, we need a vocabulary robust enough to convey a positive vision for the penal state. In this essay, I discuss three concepts that can provide more precision to the potential abstractness of human dignity, two of which the Supreme Court has regularly used in decisions regarding punishment: the idea of a “decent society,” the idea of a “civilized system of justice,” and the idea of a “condition of dignity.” In brief, without a much broader commitment to restoring a decent society, and to civilizing our justice and security systems, there is little hope that our police stations, courts, jails, and prisons will provide a condition of dignity to those unfortunate enough to end up in them.

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

The Janus face of imprisonment: Contrasting judicial conceptions of imprisonment purposes in the European Court of Human Rights and the Supreme Court of the United States

2020 ◽  
pp. 174889582091196
Author(s):  
Netanel Dagan
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Personal Responsibility ◽  
The United States ◽  
Policy Implications ◽  
Management Tool ◽  
Moral Concept ◽  
European Court ◽  
The Supreme Court

This article considers how the Supreme Court of the United States and the European Court of Human Rights apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions. The article argues that the Supreme Court and the European Court of Human Rights view, conceptualise and interpret the purposes of imprisonment differently. Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the article exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. The article offers three themes regarding the conceptualisation of imprisonment purposes by the Supreme Court and the European Court of Human Rights: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (Supreme Court), or should they conversely progress with the passage of time, from retribution to resocialisation as the primary purpose of imprisonment (European Court of Human Rights). Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (Supreme Court), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (European Court of Human Rights). Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (Supreme Court), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (European Court of Human Rights). Possible theoretical implications and general policy implications are considered in the article.

scholarly journals ROAD-ACCIDENT FUND: SERIOUS INJURY CLAIMS AND JUDICIAL PRECEDENT: THE SUPREME COURT OF APPEAL HAS SPOKEN Road Accident Fund v Duma 202/2012 and Three related cases (Health Professions Council of South Africa as Amicus Curiae) [2012] ZASCA 169 (27 November

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Magda Slabbert
Keyword(s):  
Supreme Court ◽  
Motor Vehicle ◽  
Medical Practitioner ◽  
Health Professions ◽  
Road Accident ◽  
Third Party ◽  
The Road ◽  
The Supreme Court ◽  
Serious Injury ◽  
Court Of Appeal

The appeal is based on four cases against the Road Accident Fund (the Fund) that were instituted in the South Gauteng High Court, Johannesburg, for damages suffered as a result of motor-vehicle accidents. It was not disputed that the Fund was liable to compensate the four appellants as third parties for injuries sustained in the accidents. The only matter on appeal was the plaintiff’s entitlement togeneral damages as contemplated by section 17(1) and 17(1A) of the Road Accident Fund Act 56 of 1996, read with the Regulationspromulgated under the Act. According to the Road Accident Amendment Act 19 of 2005 (which became effective on 1 August 2008) the Fund’s liability for general damages is limited to those victims who suffered “serious injury”. Unfortunately neither section 17(1) nor section 17(1A) provides any objectively determinable guidelines as to how to determine whether an injury is serious or not. Only the Regulations prescribe the procedure to be followed in order to determine whether the appellants indeed suffered “serious injuries” (Regulation 3). Regulation 3(1)(a) stipulates that a third party who wishes to claim general damages shall submit himself or herself to an assessment by a medical practitioner registered as a medical practitioner under the Health Professions Act 56 of 1974. Regulation 3(3)(a) determinesthat a third party who has been so assessed shall obtain from the medical practitioner concerned a serious-injury assessment report, defined in Regulation 1 as a duly completed RAF4 form. This form read with Regulation 3(1)(b) requires the medical practitioner to assess the seriousness of an injury in accordance with three sets of criteria. The Fund has to accept only claims for general damages if a claim issupported by a serious-injury report, duly filled in according to the method provided for in the Regulations. If the Fund is not satisfied, it must in terms of Regulation 3(3)(d) either reject the claim and give reasons for doing so, or direct that the third party submits himself or herself to a further assessment at the Fund’s expense by a medical practitioner designated by the Fund in accordance with Regulation 3(1)(b). If a claim does not comply with the prescribed procedures a claim for general damages is premature, as it is not for the court to decide whether an injury is “serious” or not. The judgment given in this appeal by Brand JA (Mhlantla, Leach JJA, Plasket and Saldulker AJJA concurring) overturned many previous cases judged by other courts including the four referred to. The clarification given by the Supreme Court of Appeal and the Road Accident Fund Amendment Regulations, 2013 that were published after the judgment, is significant andshould be taken cognisance of by any lawyer, medical practitioner involved in a RAF case or an individual approaching the Fund unaided by lawyers. 

scholarly journals THE NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN “ON THE PRACTICE OF THE COURTS APPLYING THE CRIMINAL LAW IN CASES OF CRIMES RELATED TO VIOLATION OF THE RULES OF THE ROAD AND THE OPERATION OF VEHICLES” DATED JUNE 29, 2011, AND THE CRIMINAL LAW

2020 ◽  
pp. 69-75
Author(s):  
K.A. Bakishev
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Criminal Law ◽  
Criminal Code ◽  
Criminal Offence ◽  
The Road ◽  
Regulatory Decision ◽  
The Supreme Court ◽  
Sufficient Degree ◽  
The Republic

The Concept of the legal policy of the Republic of Kazakhstan for the period from 2010 to 2020emphasizes that the criminal law must meet the requirements of legal accuracy and predictability ofconsequences, that is, its norms must be formulated with a sufficient degree of clarity and based on clearcriteria that exclude the possibility of arbitrary interpretation provisions of the law. Meanwhile, an analysisof the Criminal Code of the Republic of Kazakhstan shows that some articles on liability for road transportoffences are designed poorly. For example, Art. 346 of the Criminal Code of the Republic of Kazakhstan ischaracterized by a combination of formal and qualified corpus delicti, as well as two forms of guilt — intentand negligence; in Art. 351 of the Criminal Code of the Republic of Kazakhstan, the circle of subjects of thecriminal offence was significantly reduced due to the unjustified exclusion of drivers of non-mechanicalvehicles. As a result, the Supreme Court of the Republic of Kazakhstan in the regulatory decree «On thepractice of the courts applying the criminal law in cases of crimes related to violation of the rules of theroad and the operation of vehicles’ of June 29, 2011 made a number of errors and contradictions that led todifficulties in qualifying the criminal offence and the appointment criminal punishment. Taking into accountthe law-enforcement and legislative experience of Kazakhstan and other countries in the field of ensuringtraffic safety, the author proposes amendments and additions to the named regulatory decision of theSupreme Court of the Republic of Kazakhstan to improve its quality and improve law enforcement practice.

32. Selected road traffic offences (additional chapter)

2021 ◽  
pp. 1133-1133
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Road Safety ◽  
Road Traffic ◽  
The Road ◽  
Dangerous Driving ◽  
The Supreme Court ◽  
English Law

This chapter discusses road traffic offences including dangerous driving, careless and inconsiderate driving, causing death by driving, causing death by careless or inconsiderate driving when under the influence of drugs or alcohol, and causing death while driving unlawfully. A discussion of these offences contributes to an understanding of the general principles of criminal law. Dangerous and careless driving are rare examples of English law providing endangerment offences. The Road Safety Act 2006 includes some controversial new offences in which liability is imposed for a death arising while unlawfully on the roads irrespective of whether the death is due to some defect in the manner of the driving. The chapter examines the decisions of the Supreme Court in Hughes and in Taylor on the need for fault as to driving.

GLOSS to the judgment of the Supreme Court of 7 October 2016, II KK 157/16, Lex/el

2016 ◽  
Vol 294 ◽  
pp. 57-58
Author(s):  
Kazimierz J. Pawelec ◽  
Keyword(s):  
Supreme Court ◽  
General Principle ◽  
The Other ◽  
The Road ◽  
Other Hand ◽  
The Supreme Court ◽  
Timely Response ◽  
On The Road ◽  
The Relationship

The glossed decision of the Supreme Court is particularly important for the practice, inasmuch as it addresses two extremely important issues. On one hand, the decision expresses a general principle that the mere fact of a driver approaching a pedestrian crosswalk does not impose on him the obligation to perform excessive defensive maneuvers. On the other hand, it recognizes the need for a timely response, depending on the road conditions and situations. Thus, the decision addresses an important issue of the relationship between a driver and a pedestrian occurring at a crosswalk. Importantly, the provisions in force impose different obligations on drivers and pedestrians, the only common liability being a requirement for a particular caution. However, the above comments do not solve the conflict, because the existing legislation often imposes the obligation to do the impossible on a stronger traffic participant, i.e. the driver, which was recognized by the Supreme Court, which expressed an opinion diverging from the previous jurisprudence, all the more valuable, as it is sound and realistically approaching the issue in question.

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