See Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) (emphasizing due process rights of citizens detained in the war on terror declaring that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens”); Rasul v. Bush, 124 S.Ct. 2686, 2692–99 (2004) (holding that United States courts have jurisdiction to consider the legality of detention of foreign nationals captured abroad and held at Guantanamo Bay).Google Scholar

See Blakely v. Washington, 124 S.Ct. 2531 (2004). Blakely held that the U.S. Constitution requires a jury determination of certain types of sentencing enhancements, a decision that had caused several lower federal courts to conclude that aspects of the U.S. Sentencing Guidelines are unconstitutional, a development with potentially cataclysmic impact on federal law enforcement. The Supreme Court recently agreed to hear two of these lower court decisions this fall. See United States v. Booker, 2004 WL 1713654 (Aug. 2, 2004) (grant of certiorari); United States v. Fanfan, 2004 WL 1713655 (Aug. 2, 2004) (same).Google Scholar

124 S.Ct. 2488 (2004). The decision discussed here addressed two consolidated cases, respectively styled Aetna Health, Inc. v. Davila and Cigna HealthCare of Texas, Inc. v. Calad. The legal questions that the two cases presented to the Court were identical.Google Scholar

See generally Bloche, Gregg M., “One Step Ahead of the Law; Market Pressures and the Evolution of Managed Care,” in Bloche, Gregg M., ed., The Privatization of Health Care Reform (New York: Oxford University Press, 2003), at 28–31 (explaining how health plans responded to physician and consumer pressures by “backing away from aggressive preauthorization review”).Google Scholar

See Strunk, B. & Reschovsky, J., “Kinder and Gentler: Physicians and Managed Care, 1997–2001,” HSC Tracking Report from Community Tracking Study, No. 5, Nov. 2002.Google Scholar

See Texas Civ. Prac. & Rem. Code Ann. Sec. 88001–88.003 (2004 Supp.)Google Scholar

See 29 U.S.C. §§1001–1461 (2004).CrossRefGoogle Scholar

See 29 U.S.C. §1144(a) (2004).CrossRefGoogle Scholar

See 536 U.S. 355 (2002).Google Scholar

538 U.S. 329 (2002).Google Scholar

See 530 U.S. 211 (2000).Google Scholar

See id. at 236.Google Scholar

See Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring).Google Scholar

124 S.Ct. at 2486 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65–66 [1987]).Google Scholar

29 U.S.C. §1132(a)(1)(B).Google Scholar

See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54–56 (1987); see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 143–45 (1990).Google Scholar

See id.Google Scholar

See Epstein, R. and Sykes, A., “The Assault on Managed Care: Vicarious Liability, ERISA Preemption, and Class Actions,” Journal of Legal Studies 30 (2001): 625, 641–42 (explaining that “it is not difficult to fashion an argument that this current ERISA remedy is inadequate”).Google Scholar

See 124 S.Ct. at 2501.Google Scholar

See Strunk, B. and Reschovshy, J., “Kinder and Gentler,” supra note 5.Google Scholar

See 124 S.Ct. at 2503.Google Scholar

See, e.g., Kaiser Daily Health Policy Report, June 22, 2004 (noting reintroduction of patients’ rights legislation in the House of Representatives in response to Aetna).Google Scholar

On the institutional dynamics contributing to the failure of the Clinton health plan, see Ruger, J.P., Aristotelian Justice and Health Policy: Capability and Incompletely Theorized Agreements (Cambridge, MA: Doctoral Dissertation, Harvard University, 1998).Google Scholar

See 124 S.Ct. at 2504.Google Scholar

See Langbein, J., “What ERISA Means By ‘Equitable’: The Supreme Court’s Trail of Error in Russell, Mertens, and Great-West,” Columbia Law Review 103 (2003): 1317–66.CrossRefGoogle Scholar

See 124 S.Ct. 1236 (2004).Google Scholar

See Gabel, J. et al., “Health Benefits in 2003: Premiums Reach Thirteen-Year High as Employers Adopt New Forms of Cost-Sharing,” Health Affairs 22, no. 5 (2003):117–126.CrossRefGoogle Scholar