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Toll Bros. While the Fourth Circuit made an effort to parse semantics, it concluded that because the contract did not bind both parties to arbitration, the contract was invalid for lack of consideration. Although Maryland may be an outlier here, as arbitration contracts become more ubiquitous, courts may develop ways to ensure that abusively worded clauses are stricken based on equitable principles.

Regulators have noticed the effects of Concepcion and American Express on consumers. The attorneys general of Ohio and 21 other states submitted an amicus brief in American Express supporting preservation of the effective-vindication rule. Unfortunately, these contracts of adhesion containing mandatory pre-dispute arbitration clauses in their fine print are commonplace in the brokerage and investment adviser industry. It is also an alarming example of the continued erosion of investor protections.

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Indeed, without a class action vehicle, many small dollar claims and potentially harmful activity will go undiscovered by the harmed investor, thus resulting in windfalls to violators. Absent some legislative action, the proliferation of arbitration clauses will continue. In , , and , however, legislation has been introduced to modernize the FAA. Senate Bill , introduced May 7, as the Arbitration Fairness Action, declares that no predispute arbitration agreement will be valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

But at this point, the Arbitration Fairness Act has never made it out of committee. Concepcion , S. LLC v. Mattel Inc.

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Cone Memorial Hosp. Mercury Constr. Italian Colors Rest. Cross Country Bank Inc. Superior Court , P. Ferrer , U. Thomas , U. Soler Chrysler-Plymouth Inc. Board of Trustees of Leland Stanford Jr. Randolph , U.

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Jones , No. Cook , Wis. EZCorp Inc. Wisconsin Tel. Hartford Rexall Drugs Inc. TM Transp. Karl Knauz Motors Inc. Kraftmaid Cabinetry Inc.

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Supreme Bargaining Power versus Supreme Military Power

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Supreme Court has interpreted the Federal Arbitration Act to apply to parties of unequal bargaining power, making it increasingly difficult — if not impossible — for individuals and businesses subject to adhesion contracts to exercise their legal rights. In addition, HHS held four regional forums where they expect to discuss many of the issues in the next steps to implement health reform. The Washington D. Is the challenge to the constitutionality of the individual mandate barred by the Tax Anti-Injunction Act? The Anti-Injunction Act AIA is a federal law that precludes, with certain exceptions, an individual from suing the federal government to stop a tax from being assessed or collected.

This issue turns on whether the penalty for failure to purchase health insurance under the ACA is a tax under the AIA and subsequently barred from court review until the mandate becomes effective in and a penalty is assessed for failure to purchase qualified coverage is assessed in ? The Commerce Clause gives broad authority to the Congress on matters of interstate commerce and foreign trade. If the individual mandate is found to be unconstitutional, can other provisions of the ACA be saved? The court upheld the Medicaid expansion, but makes it a voluntary provision as opposed to a mandatory provision.

The court would not permit HHS to penalize states by withholding all Medicaid funding for choosing not to participate in the expansion. The U. The chart below summarizes the key holdings in the case. NCSL will continue to analyze the decision and its effects on states. Check back on this page for updates in the coming days. In any event, states will now have to consider whether or not to proceed with implementation and adjust to the ramifications as they unfold.

This federal overhaul of health care will be the law of the land until the U. Congress reaffirms, improves or dismantles any of the provisions of the health care act. NCSL has been a leader in providing state legislatures with detailed information on healthcare reform, and we'll continue to look to NCSL for details on how it will impacts states. First was a procedural question over whether, under the federal Anti-Injunction Act, the law could be challenged before the penalty for not purchasing insurance was imposed.

The court decided the Anti-Injunction Act does not apply in this case. A core provision of the law, the individual mandate, was challenged on the basis that Congress exceeded its authority under the Commerce Clause by compelling people to buy health insurance. The court held that the Congress did not have authority under the Commerce Clause to compel individuals to purchase health insurance coverage, but held that the Congress did have authority under its taxing powers to impose a penalty or tax on individuals who fail to purchase such coverage.

As a result, the individual mandate was upheld. A third challenge—that the entire law or other parts of it should be struck down if the individual mandate was found unconstitutional—was moot because the mandate was upheld. The Affordable Care Act expands Medicaid eligibility to most people who are not disabled with incomes at or below percent of the federal poverty level. The court held that the Medicaid expansion established in the act is Constitutional provided that the expansion is a state option.

The court also held that a state could not be penalized for choosing to continue its existing Medicaid program. Pound, executive director of NCSL. It will be interesting to watch in the years ahead whether other federal programs that tie state implementation with large funding grants will be deemed unconstitutionally coercive. In March , the U. Congress passed H.

A major section of the ACA is devoted to expanding access to affordable health care coverage to most U.

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The law seeks to achieve this goal by:. Those include significant funding for public health programs, funding to states for innovative projects to provide improved services to seniors and people with disabilities and improved health services for Native Americans. There also are amendments to the Medicaid and Medicare programs that are address the ongoing operation of the programs.

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The culmination of these actions took place March 26, 27, and 28 when the U. The issue here is whether the suit can go forward since the tax is not yet in effect. If it is found to be a tax and subject to the act, the court, in most instances, would be precluded from hearing the case until such time as a penalty has been assessed and paid.

This would not occur under current law until the individual mandate provisions become effective in January