J. Restoring the Common Law
The General Welfare: A Legislative Agenda for a Better American Future
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
To comment on proposals, join the debate, or add your own suggestions, go to http://thegeneralwelfare.blogspot.com.
Restoring the Common Law to Protect Consumers and Free Markets
In the last several decades, as special interest lobbyists have increased their hold on American legislatures, they have succeeded in changing many traditional rules of law to further favor businesses and disfavor their customers and employees -- that is, the American citizens a free market ought to be serving. Markets only function within a reasonable and fair set of rules. These proposals aim to restore a lost balance between the middle class and unbridled greed.
The Anti-Usury Act.
No lender shall charge interest at an annual rate higher than 15% above the annual rate of inflation (CPI).
This statute shall apply to any transaction that is substantially equivalent to a loan regardless of legal characterization (including but not limited to arrangements characterized as leases, contingent sales and derivatives).
Any state may impose a lower interest rate ceiling.
Any person injured by a usurious contract may sue for damages on behalf of themselves and others similarly situated.
Fair Credit Reporting Anti-Libel Act.
Publication of negative information about an individual's credit, in circumstances where such information could reasonably be expected to lead to loss of work, credit, home, or insurance, or higher interest, rent or insurance rates, or other monetary or reputational damage, is defamation per se.
Truth is a complete defense. Except in circumstances involving a Public Figure or matters of public concern, the burden of proof is on the publisher of the defamation to prove its truth.
Every credit agency is a publisher within the meaning of this statute. Providing information to a credit agency is "publishing" such information within the meaning of this statute. Distributing information in a credit report, whether by electronic or other means, is publication within the meaning of this statute.
An action for defamation may be brought for statutory damages of $1000 per publication per item, or for actual damages, including consequential damages, or both.
Honest Medical Billing Act.
Current medical billing is extraordinarily difficult to understand and often deceptive, leading to widespread market failure. Billing rates bear no relation to actual charges, while consumers with the least bargaining power are often required to pay more than those with insurance.
The medical industry's standard practice of charging the highest rates to those least able to afford them is discriminatory and unfair, resembling the practices of nineteenth century railroads rather than honest market pricing.
Patients should be entitled to the same rates regardless of their financial status.
Moreover, ordinary common law principles apply to medical contracts and courts should enforce them -- if doctors choose to charge in quasi-contract, they should be held to the principles of quasi-contract, not allowed to simply make up any number they like. If doctors believe that insurance companies have misstated the reasonable and customary charge, they should be allowed to contest such determinations directly with the insurance company; the insured patient has no interest and should be excused from this dispute.
Finally, insurance companies should be consistent in their charges; they should not be permitted to pay a provider one amount and then calculate the patient's co-pay using a different number altogether.
I. Standard Medical Bills and Insurance Forms
The FDA is hereby directed to create a standard medical insurance reimbursement form. All medical insurance carriers shall accept this form on paper and electronically. On a patient's request, any medical service provider shall submit the standard form to any insurance carrier without regard to whether or not the service provider has a contract with such insurer.
The insurance form, and each medical bill sent to any patient, shall clearly state the date of service, the service performed including the standard medical code, and the fee.
II. "Most Favored Nation" Fair Pricing Clause
No medical provider shall bill any uninsured patient any fee higher than the lowest fee that such provider has contractually agreed to accept, or ordinarily accepts, from
any public or private insurer,
self-insured employer,
Blue Cross plan or
Medicare,
unless the bill clearly states in bold letters
(1) that the fee is higher than the fee charged to insured patients and
(2) the dollar amount of the lowest fee charged to insured patients, and
(3) the difference between the fee charged and the lowest fee charged to insured patients.
Any bill issued in violation of this provision shall be unenforceable and the patient shall not be liable for any charge for the billed service.
Any patient who is billed in violation of this provision and pays the amount billed or any part of it may sue for a refund plus a penalty of 50% or reasonable attorney's fees. The statute of limitations shall be the statute of limitations for contract actions, commencing at the time of payment of the bill.
III. Quasi-Contract Suits for Fair Value Only
In any lawsuit by a medical service provider or assignee for payment for medical services rendered, medical service charges shall be deemed charges in quasi-contract for fair value of services rendered. Provided however, that this provision shall not apply if the medical service provider proves that the patient contracted to pay a higher amount after being fully informed, in advance of the service, of the exact charge that would be billed and the difference, if any, between that charge and the charge that would be accepted as "reasonable and customary" for the service by the largest local insurer or an insurer of the patient's choice.
The burden of proof to prove the fair value of services rendered shall be on the service provider.
In the ordinary course, fair value shall be the lower of the reasonable and customary charge for such services or the lowest fee such provider accepts for such services from non-charity cases.
In exceptional cases, however, the court may depart from these standards for good cause shown.
Insurance company standards for "reasonable and customary" shall be admissible as expert witness opinion evidence of "reasonable and customary" charges.
The amount billed in the contested instance is not evidence of the fair value of services rendered, provided however that in no event shall a court award the service provider more than the amount billed.
Any patient who is billed more than the legally enforceable amount for medical services and pays such bill may sue for a refund plus a penalty of 50% or reasonable attorney's fees. The statute of limitations shall be the statute of limitations for contract actions, commencing at the time of payment of the bill.
IV. Medical Provider's Right & Obligation to Dispute Insurance Company Determinations
If a medical service provider bills an insured patient for medical services and the insured patient (or the patient's insurance company) pays the "reasonable and customary" charge as determined by the patient's insurance company, plus any applicable CO-pay or deductible, the provider shall have no further remedy or claim against such patient. However, the medical service provider shall be fully subrogated to such patient's claim against the insurance company for breach of contract due to incorrect determination of "reasonable and customary" and may proceed against the insurance company in the patient's shoes to recover under the insurance contract and for any related damages.
Any medical service provider or association of such providers may commence a declaratory action against any insurance company or companies to correct determinations of "reasonable and customary" fees. Such actions may be commenced in advance of, during, or after any actual dispute over an actual submitted bill.
V. Honesty in Insurance Co-pays
Any insurance contract providing for a CO-pay amount calculated as a percentage of the service charge shall apply the percentage to the "allowable" or "reasonable and customary" charge, whichever is lower. In no event shall an insurance company calculate any charge for a deductible, CO-pay, or patient's responsibility as a percentage of a billed amount the insurance company would not pay.
The Internet Privacy and Private Property Protection Act.
Marketers, website, search engine and ISP providers have massively expropriated the private property of American citizens, seizing space on their computers in order to track their movements, activities, purchases and opinions. This novel form of trespass and invasion of privacy has not been adequately policed by the courts, which have failed to enforce basic property rights against physical and metaphorical invasion. This statute seeks to restore the basic common law structure and make it enforceable in effective Federal actions. It does NOT restrict employers from restricting or monitoring employee use of employer-owned computers.
I. Restoration of Property Rights in Computers
Computers, including their hard-drives, are the property of the individual who or entity which owns them.
Placing a program or data on the property of another, or collecting information about the contents thereof, without the owner's explicit consent is trespass. Each placement of such program or data, or accessing of it, is a separate trespass.
Any person that trespasses on the hard-drive of another shall be liable for damages in the amount of $100 per infraction or actual damages, whichever is greater.
II. Restoration of Property Rights in Personal Information
Individual human beings, but not entities, have a property right in information about themselves, including but not limited to information about their habits, thoughts, purchasing, consumption and viewing patterns, and genetic makeup ("personal information").
No person shall appropriate another person's personal information without agreement from the subject of and owner of the information.
Any person that misappropriates personal information shall be liable for damages in the amount of $100 per infraction, or actual damages, whichever is greater. If the subject of such information is a Public Figure within the meaning of US libel law, it shall be a complete defense to any action under this title that the appropriated information was used solely for purposes of public debate, was not misrepresented and is a matter of public concern.
III. Prevention of Trespass on Private Property (hard drives)
No computer owner or information owner's consent to any "cookie" or other Internet tracking device capable of tracking and communicating information about any computer user's downloads or inputs or reading any part of such user's hard-drive or memory, shall be effective, unless the cookie or other Internet tracking device clearly informs the computer user of the specific information it transmits prior to each transmission thereof or access thereto.
Such disclosure must be in a form that is reasonably designed to inform an average user of
the information that is being transmitted,
the uses to which it will be put, and
the inferences that can be drawn from such information combined with other information that is, or may be, in the possession of the recipient.
Any person that appropriates information, or causes information to be transmitted, or receives information so transmitted, in violation of this statute shall be liable for damages in the amount of $100 per infraction, or actual damages, whichever is greater.
IV. Expectation of Privacy
All citizens using e-mail transmitted over means of interstate commerce are entitled to a reasonable expectation of privacy in e-mail sent from a password-protected account to a specific individual.
Employees have a reasonable expectation of privacy against their employer in e-mail they send using employer-owned computers or computer networks, if the e-mail is sent using a non-employer, personal, password-protected e-mail account.
Intercepting or reading a citizen's e-mail without the consent of the sender shall be subject to the same restrictions and the same penalties as intercepting or reading first class US mail.
Addressees of e-mail shall have the same rights to monitor, delete, retain, compile, scan, forward, publish or otherwise use e-mail as they would have with respect to material received by US mail.
Mere transmission or forwarding of an e-mail without electronic or human monitoring of the content thereof shall not be deemed "reading or intercepting."
Electronic monitoring or suppression of e-mail for viruses or spam, if such monitoring or suppression is with the knowledge and consent of either sender or recipient, shall not be deemed "reading or intercepting."
Computer network operators may keep a copy of e-mail transmitted over their network for a reasonable time not to exceed 6 months, for the purpose of identifying and eliminating viruses or similar problems, provided that they have in place a reasonably secure system to prevent monitoring, scanning, duplicating or reading e-mail for other purposes.
This provision shall not apply to e-mail sent by or on behalf of a corporation, governmental agency or other non-citizen, or to e-mail sent by a citizen using an e-mail account belonging to his or her employer to which the user has access only for the employer's purposes.
The Dean Baker Drug Research Improvement and Monopoly Profits Reduction Act.
Patent monopolies are an expensive and inefficient way to reward past drug research or fund new research. They provide funds to researchers based on the salability of prior research rather than the promise of future research, reward expensive treatments for the affluent rather than necessary or useful treatments for all, and create powerful incentives for manufacturers to promote overuse of existing patented drugs in order to capture monopoly profits. A system of peer reviewed research and prizes would generate better results for far less cost, while still creating sufficient rewards for the occasional maverick to gather private funding.
Patent monopoly protection for pharmaceuticals is hereby reduced to five years, commencing from the first application for a pharmaceutical or any closely related substance.
The CBO shall calculate the expected savings for Medicare due to the reduced prices as drugs come off patent sooner. This amount shall be shifted from Medicare's budget to NIH.
The CBO shall calculate the expected savings for Americans not using Medicare due to the reduced prices as drugs come off patent sooner. This amount shall be appropriated to NIH and funded with general tax revenues, unless the Congress shall vote to fund it with a tax on existing pharmaceuticals in the amount of the saved monopoly profits.
NIH shall fund primary research and research and development to create marketable pharmaceuticals by means of competitive, peer reviewed grants. University and for-profit researchers shall be eligible to apply for grants.
NIH shall fund a prize system, granting a prize in the amount of $10,000 for every life saved and proportionally lesser amounts for nonfatal diseases or injuries cured or ameliorated by new pharmaceuticals, taking into account side-effects and the degree of improvements over previously existing treatments. Prizes shall be based on reported results during the patent period and paid one year after the expiration of the patent period. Should additional benefits or detriments be discovered after the prize payment, payments may be retroactively adjusted by the agency or on application of the prize recipient or any affected consumer. Prize determinations shall be based as much as possible on objective statistical determinations of medical utility, with necessary judgments of relative utility or success made by a peer reviewed panel of experts and public representatives with appropriate safeguards against conflict of interest.
American Property Rights Protection And Free Market Pricing Act.
No person shall be granted a license or permit to use, mine, farm, graze, exploit,or occupy land that is the property of the United States, or any mineral or resource that is the property of the United States, unless such person pays a fee at least equal to the fee that would be charged in an arms length private sector transaction.
In all cost-benefit analyses performed with regard to US owned resources, the value of retaining native fauna, flora or landscapes shall be priced at no less than the amount Americans would expect to paid to relinquish the rights to possession, maintenance, continuing enjoyment and knowledge of the continuing health and safety of such fauna, flora and landscape.
The fee for grazing permits on US land shall be no less than the cost of grazing on equivalent private land, and shall include the cost of repair or restoration of such land and the monetary value of damage done to the beauty and natural biological diversity of such land, including the value to Americans who wish to know that US land remains intact.
The fee for extraction permits on US land shall be no less than the market cost of extracting similar commodities from private land, and shall in every case include a fee for the costs of full restoration of the land after extraction and elimination of the effects of any pollution or global warming gases emitted or produced during extraction, transport or use of the commodity.
No grazing or extraction permit shall be issued if, in the judgment of any of the Secretary, applicable state or local authorities, or determination of the EPA, grazing permits shall cause damage to buffalo, other native fauna or flora, or the value of the land as a refuge or reserve for Americans nationally, if the monetary or non-monetary value of such damage is greater than the incremental benefit to the American people as a whole of the permit.
It is the policy of the United States to manage its fuel resources with regard for the rights of future generations. In general, this means that resources ought to stored undeveloped to the degree possible, so that they will be available for future use when no alternatives are available.
No fuel extraction permit shall be granted unless the grant recipient pays a fee equal to the lesser of
(1) the costs of restoration of the land following extraction, plus the costs of eliminating the effects of any pollution or global warming gases emitted during production, transport, marketing or use of the fuel, or
(2) an amount necessary to create incentives to produce less polluting and more sustainable alternative sources.
No power plant or other permit shall be granted unless the licensee/permitee demonstrates sufficient assets (or insurance or similar guarantee from a guarantor with sufficient assets) to cover tort damages in the worst possible scenario. All caps on tort liability resulting from negligent operation of any power plant or extractive industry are hereby repealed.
The Copyright Limitation and Monopoly Distortion Reduction Act
Whereas, copyright is a government-granted monopoly power allowing publishers and other copyright holders to extract monopoly profits, and
Whereas such monopolies are warranted for limited times to promote the publication of interesting, beautiful, useful and entertaining materials, and to reward the creators and publishers of such material, and
Whereas most knowledge is cumulative and common, created in reliance and dependence on the work of others and, in turn, contributing to that common enterprise,
Whereas the original US copyright act provided for a monopoly term of 14 years, renewable once, after which knowledge would return to the public domain,
Whereas one person's use of knowledge created by another does not diminish the creator's knowledge and is more likely to increase than decrease the latter's ability to increase the fund of human knowledge,
Whereas excessively long copyright privileges interfere with the progress of the arts and sciences, economic growth and human cultural development, distort markets, create dysfunctional incentives for publishers to concentrate on finding potential "blockbusters" instead of a wide range of material, interfere with the ability of researchers and artists to use the common fund of knowledge and culture, and create incentives for monopoly rent seeking by excessive litigation and other means, now therefore:
Copyrights shall expire after 30 years or the death of a human creator who is also the copyright holder, whichever is later. In the case of a collective or corporate creator or copyright holder, copyright shall expire after 30 years.
Bankruptcy Correction and Equal Justice Act.
The special provision barring discharge of student loans is repealed. A bankruptcy court may discharge student loans on the same terms and pursuant to the same rules as other unsecured loans
The special provision barring "cramdowns" of home mortgage loans is repealed. A bankruptcy court may re-form or discharge a loan secured by a home mortgage on the same terms as other secured loans.
The special provisions limiting discharge of credit card and other consumer debt are repealed. Consumers are entitled to discharge and bankruptcy relief on terms no worse than businesses