For-profit nursing homes came to dominate nursing-home care in the United States in the second half of the twentieth century, especially after the passage of Medicare and Medicaid legislation in the 1960s. However, for-profit nursing homes on average provided inferior care when compared to state-run and nonprofit nursing homes. Congress attempted to address the problems in nursing homes in the final decades of the twentieth century, but massive statutes and abundant regulations served mostly to legitimize the problematic for-profit nursing home. COVID-19 then tragically underscored the flaws in the legally sanctioned for-profit nursing home as a major socio-legal institution in American life.
{"title":"The Stage Was Set for Disaster: For-Profit Nursing Homes, Federal Law, and COVID-19","authors":"D. Papke","doi":"10.2139/ssrn.3869211","DOIUrl":"https://doi.org/10.2139/ssrn.3869211","url":null,"abstract":"For-profit nursing homes came to dominate nursing-home care in the United States in the second half of the twentieth century, especially after the passage of Medicare and Medicaid legislation in the 1960s. However, for-profit nursing homes on average provided inferior care when compared to state-run and nonprofit nursing homes. Congress attempted to address the problems in nursing homes in the final decades of the twentieth century, but massive statutes and abundant regulations served mostly to legitimize the problematic for-profit nursing home. COVID-19 then tragically underscored the flaws in the legally sanctioned for-profit nursing home as a major socio-legal institution in American life.","PeriodicalId":174210,"journal":{"name":"Marquette University Law School Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130462951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-06-03DOI: 10.36646/mjlr.43.4.turning
Nadelle Grossman
Corporate boards face significant pressure to make decisions that maximize profits in the short run. That pressure comes in part from executives who are financially rewarded for short-term profits despite the long-term risks associated with those profit-making activities. The current financial crisis, where executives at AIG and numerous other institutions ignored the long-term risks associated with their mortgage backed securities investments, arose largely because those executives were compensated for the short-term profits generated by those investments despite their longer-term risks. Pressure on boards for short-term profits also comes from activist investors who seek to make quick money off of trading in stocks whose prices overly reflect short-term firm values. Yet this excessive focus on producing short-term profits runs counter to the interests of non-short-termist investors, other corporate constituents, as well as our economy and society as a whole in creating corporate enterprises that are profitable on an enduring basis. Once again, the current financial crisis provides a lens through which we can see the distressing impact-both to individual businesses as well as to the entire US community-of an excessive focus on short-term profits. I propose a solution to address this problem of short-termism. Under my proposal, directors would be required to make decisions that are in the long-term best interest of stockholders and the corporation under their fiduciary duties. I explain in the Article why I propose fixing the short-termism problem through fiduciary duties as well as how, practically, my proposal would be implemented.
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The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in the Telecommunications Act of 1996, the goals of regulation have become the promotion of competition and maximization of consumer choice. The role of agencies has been reduced to monitoring access and pricing of 'bottleneck' monopolies such as the local telecommunications loop and electricity distribution systems.Having described this transformation in six core common carrier and public utility industries-railroads, airlines, trucks, telecommunications, electricity, and natural gas-the Article sets out on a quest to find its causes. No consistent pattern of institutional leadership can be discerned in any of the three types of government actors with the power to compel change: the regulatory agencies, the courts, and the Congress. This suggests that the causes are rooted in deep-seated economic and social forces, such as technological changes, and chain reactions that have emerged as regulatory reform in one industry segment has spread to another segment. The Article concludes that the two most persuasive explanations are that key interest groups have discovered that regulatory change is in their interests, and that an ideological consensus has emerged among economists and other policy elites that the original paradigm entails risks of regulatory failure that exceed the risks of market failure under the new paradigm.
在过去的25年里，美国管理运输、电信和能源行业的方式发生了巨大的变化。最初的监管模式是由1887年开始的《州际商法》(Interstate Commerce Act)对铁路的监管建立起来的，其特点是立法创建了一个行政机构，负责对特定行业的一般监管。这种办法并不取决于受管制的工业是天生具有竞争性还是天生具有垄断性，其目的是促进公认的可靠性目标，特别是不歧视目标。相比之下，在1996年《电信法》(Telecommunications Act of 1996)中表现得最为明显的新范式下，监管的目标已成为促进竞争和使消费者选择最大化。机构的作用已经减少到监测诸如地方电信环路和电力分配系统等“瓶颈”垄断的获取和定价。在描述了铁路、航空、卡车、电信、电力和天然气这六个核心公共运输和公用事业行业的这种转变之后，文章开始寻找其原因。在监管机构、法院和国会这三种有权力迫使变革的政府行为体中，任何一种都看不到一致的机构领导模式。这表明，其根源在于技术变革等深层次的经济和社会力量，以及随着一个行业领域的监管改革蔓延到另一个行业领域而出现的连锁反应。本文认为，两种最有说服力的解释是:一是主要利益集团发现监管变革符合他们的利益;二是经济学家和其他政策精英在意识形态上达成共识，即在新范式下，原有范式带来的监管失灵风险超过了市场失灵风险。
{"title":"The Great Transformation of Regulated Industries Law","authors":"Joseph D. Kearney, T. Merrill","doi":"10.2307/1123301","DOIUrl":"https://doi.org/10.2307/1123301","url":null,"abstract":"The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in the Telecommunications Act of 1996, the goals of regulation have become the promotion of competition and maximization of consumer choice. The role of agencies has been reduced to monitoring access and pricing of 'bottleneck' monopolies such as the local telecommunications loop and electricity distribution systems.Having described this transformation in six core common carrier and public utility industries-railroads, airlines, trucks, telecommunications, electricity, and natural gas-the Article sets out on a quest to find its causes. No consistent pattern of institutional leadership can be discerned in any of the three types of government actors with the power to compel change: the regulatory agencies, the courts, and the Congress. This suggests that the causes are rooted in deep-seated economic and social forces, such as technological changes, and chain reactions that have emerged as regulatory reform in one industry segment has spread to another segment. The Article concludes that the two most persuasive explanations are that key interest groups have discovered that regulatory change is in their interests, and that an ideological consensus has emerged among economists and other policy elites that the original paradigm entails risks of regulatory failure that exceed the risks of market failure under the new paradigm.","PeriodicalId":174210,"journal":{"name":"Marquette University Law School Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1998-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130998255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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