Author: Sarah

This Article analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme Court and Congress in achieving aspirations of the Second Founding. The framework that emerges requires the judiciary to defer to legitimate legislative functions in enforcing racial equality, dignitary justice, and access to the ballot box. Congress’s discretion extends to safeguards for fundamental rights, civil liberties, and political representation. Rational basis review is appropriate when Congress advances autonomy, equality, and franchise. However, when courts safeguard equal enjoyment of fundamental rights against legislative encroachments, those three amendments require heightened judicial scrutiny of adverse state actions.

This Note explores the Tunney Act’s mechanism for judicial review of consent decrees negotiated by the U.S. Department of Justice and merging parties to remedy alleged antitrust issues. The Tunney Act requires that the reviewing court only approve a consent decree if it is “in the public interest.” This Note argues, however, that courts have improperly circumscribed their review by affording too much deference to the Department of Justice when reviewing these consent decrees. This deference subverts Congress’s intent in imposing judicial review and allows the government and merging parties the opportunity to skirt meaningful judicial review. As such, this Note concludes that courts should reanimate their role in reviewing consent decrees under the Tunney Act by affording a lower degree of deference to the Department of Justice. It is the correct reading of both the statute and the legislative history, it does not pose an unconstitutional imbalance between the judicial and executive branches, and it is critical to containing the harmful effects of anticompetitive mergers.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) included a now-ubiquitous provision designed to protect the privacy of patients’ protected health information. The provision prohibits covered entities, including health care providers and their agents, from disclosing any demographic information that may identify a patient and that relates to that patient’s medical care. The provision is broad and can include such simple information as which doctor a patient consults or the date of a patient’s consultation with a physician.

Unfortunately, such protections become impracticable in the bankruptcy setting. When a health care provider files bankruptcy, it files a host of documents that may inadvertently disclose protected health information. For example, recent patients usually must be given the opportunity to file a claim. To do so, the provider must list them on its initial schedules filed with its petition. These schedules, like almost all bankruptcy filings, become public record and can be found online, resulting in the type of disclosure prohibited by HIPAA. And the problem compounds as the case continues.

By walking through the hypothetical Chapter 11 case of a bankrupt fertility clinic, this Note highlights a few of the bankruptcy disclosures that prove particularly risky to protected health information (PHI). It argues that the rigidity of the Federal Rules of Bankruptcy Procedure and Title 11 of the United States Code (the Bankruptcy Code) contravene HIPAA’s privacy rule. It then recommends several opportunities to protect PHI through attorney, court, and legislative action. Specifically, this Note proposes that Congress incorporate specific language aimed at protecting PHI into existing bankruptcy laws. Enacting even a few of the recommendations in this Note would facilitate the protection of PHI and HIPAA compliance.