How early accountable care efforts shaped payment reform in the ACA and bipartisan reform ever since
The Center for Medicare and Medicaid Innovation recently announced the creation of the Next Generation Accountable Care (ACO) Model, which builds on the experience of the existing Pioneer ACO Program and Medicare Shared Savings Program (MSSP). This new model offers an opportunity for participating organizations to assume greater financial risk, including capitated payments; provides greater payment and care coordination flexibility; allows ACOs to earn great shared savings than in previous Medicare accountable care programs; and make needed adjustments to financial benchmark calculations. At the same time, CMS is in the process of making changes to the MSSP following the solicitation of public comment on a proposed rule released in December. These developments are an opportunity to further refine Medicare ACOs and set participating organizations on a more sustainable path for years to come, as we noted in our comments filed in February.
The path to Medicare ACOs began in 2005 with the CMS Physician Group Practice (PGP) Demonstration, a five year shared savings demonstration program that included 10 provider organizations. By the fifth performance year, all 10 of the physician groups achieved benchmark performance on at least 30 of the 32 quality measures, while 7 achieved benchmark performance on all 32 measures. Seven of the physician groups shared in savings during at least 1 of the 5 performance years.
Based upon the early demonstration of the potential for ACOs, the Center for Health Policy at Brookings in partnership with the Dartmouth Institute for Health Policy and Clinical Practice launched a comprehensive research effort to refine and promote the shared savings concept. In addition to published articles on accountable care, in 2007, Brookings/Dartmouth launched ACO pilots at five health care organizations (HealthCare Partners, Monarch HealthCare, Tucson Medical Center, Norton Healthcare, and Carilion Clinic). Through shared savings arrangements with commercial health plan partners, the pilot sites led to better understanding of the fundamental lessons of accountable care implementation and practice. Following the establishment of the pilot sites, Brookings and Dartmouth created the ACO Learning Network in order to foster the sharing of best practices and help providers, payers, and other related stakeholders understand and succeed at accountable care.
In conjunction with these ACO learning activities, Brookings and Dartmouth began discussions with the Congressional Budget Office (CBO) about how accountable care could be expanded to Medicare. In December 2008, the CBO included the idea of bonus-eligible organizations (BEOs), based on ACO principles, in their budget options book. In their budget options book, CBO noted the important contributions of three organizations: Brookings, MedPAC, and CMS. During the ongoing health reform debates in 2009, Brookings continued to provide thought leadership to members of Congress on how to develop ACOs for Medicare. A bicameral bill, Patients’ Choice Act, sponsored by Republicans in May 2009 included a Medicare ACO demonstration program, which closely resembled what is now the MSSP.
Following modestly favorable scoring by the CBO and growing bipartisan support for a Medicare ACO program, the MSSP model was included in the Medicare program as section 3022 of the ACA. The ACA also created CMMI as a way to foster the development of innovative payment and service delivery models to reduce program health system costs while maintaining high quality care. In January, 2012, CMMI launched the Pioneer ACO for 32 advanced health systems ready to implement accountable care. A few months later, in April 2012, the first round of MSSP participants organizations was announced. As an open-enrollment program, the MSSP currently has 405 participating ACOs, including 89 new organizations that began in January 2015. There are currently 19 Pioneer ACOs after nearly a third of the original organizations left the program as a result of dissatisfaction with program requirements and less favorable results than expected. Medicare ACOs collectively serve 7.8 million beneficiaries.
The evidence on Medicare ACOs to date is encouraging, but also highlights some areas for further improvement and development. Roughly half of all Medicare ACOs have been able to reduce costs below their financial benchmark with approximately a quarter reducing costs significantly enough to qualify for shared savings. Meanwhile nearly all ACOs have been able to improve their performance on 33 quality measures.
The relative success and value of ACOs to date has been a driver for continued bipartisan support. In fact, bipartisan legislation introduced last year to repeal and replace the SGR included incentive payments for providers who receive a significant portion of their revenue from an alternative payment model (APM), such as an ACO. Similarly, the latest SGR repeal proposal released this week includes a five percent bonus to providers who receive at least 25 percent of their Medicare revenue through ACOs and other APMs in 2018-2019. We anticipate that bipartisan support for ACOs will continue into the future.
With the recent announcement of the Next Generation ACO Model and ongoing refinement of the MSSP, CMS has also indicated a clear commitment to continuing to advance accountable care models. There are many challenges ahead, which we and other organizations have addressed in comments and policy briefs; however, there are also great opportunities ahead to continue improving accountable care and helping organizations advance to increasing financial risk over time. The Center for Health Policy will continue to support these efforts in the coming years through the ACO Learning Network, our policy work, and collaboration with those implementing and practicing accountable care across the country.Authors
- S. Lawrence Kocot
- Ross White
Say you’re a pediatrician whose 8-year-old patient is showing symptoms of Attention Deficit Hyperactivity Disorder. That’s not unusual, up to 12 percent of American kids are diagnosed with it.
But you know that in general, ADHD treatment tends not to work as well in poor kids, like your patient, as it does in their better-off peers. And you also happen to know that the symptoms began two months after the patient’s father was incarcerated. It might be ADHD, or it might just be horrible stress. What do you do?
This is the kind of challenge that routinely faces pediatricians at Boston Medical Center, where most of their patients comes from the inner city, says Dr. Michael Silverstein, chief of the hospital’s division of General Academic Pediatrics.
In a study of 156 young patients just out in the journal Pediatrics, Silverstein and colleagues report some success with an experimental intervention they designed to address such challenging cases.
They found that with a relatively modest investment — about a week of training for a care manager that the patients’ families interact with anyway — they could “move the needle” on ADHD symptoms and social skills, he says.
I asked him to elaborate. First, the background:
General pediatricians tend to be fully equipped to treat straightforward cases of ADHD, Dr. Silverstein says, but for tougher cases like the one described above, and many among BMC’s population of vulnerable kids, they need specialists to address the more vexing issues. One proven model of providing that expertise is called “collaborative care.”
The pediatrician is “driving the boat,” he says, but the specialists “essentially provide what we call ‘decision support.’ They say, ‘For someone like who you’re describing to me, I would try something like this.’ They give the rules of the road to the primary care doc, but the primary care doc drives.
And because it’s so hard to get busy people into the same room at the same time, the communication between the primary care doctor and the specialist is mediated through a ‘care manager’ intermediary.” (Ideally, a child psychiatrist would be right down the hallway, but that’s “pie in the sky” for under-resourced hospitals like the BMC, he notes.)
Research has shown that collaborative care works well, “but at BMC and places like it, this way of delivering care is probably necessary but not sufficient.” The reason? “A lot of kids with symptoms of ADHD don’t get better even when treated optimally. Why is that? You give them access to proper medication, the diagnosis is made properly, yet they don’t get better. And we homed in on three reasons that kids with ADHD symptoms may not get better that really were relevant to our population:
• The first is that we know that parents of children with ADHD have a disproportionate burden of mental illness themselves. You could imagine a child’s improvement trajectory might not be as good if his mother is depressed.
• Also, in general we see a guardedness about going to the doctor for behavioral problems — that’s not in everyone’s cultural frame of reference. So the idea of medication for inattention might not be where everyone is at. These are potentially stigmatizing conditions, so lots of times people recommend a course of action — medication or something else — but the families aren’t quite there.
• And the third reason is that we know that for certain children with ADHD, behavioral therapies work really well in addition to medication, but our families tend not to have access to those.
So we developed an intervention that was hung on the structure of collaborative care, where the care managers who serve as intermediaries between specialists and generalists are trained to address those three things.
The care manager typically would be bilingual, usually a woman in her mid-twenties. We would train this person in an interactional technique called motivational interviewing. It’s a very non-judgmental, client-centered way of interacting with a patient or patient’s family that lets them – the patient’s mother or father — explore why or why not they might be ambivalent to engage with care on behalf of their child or their own mental health.
So the care managers that were providing an enhanced level of care had week-long training in motivational interviewing and also had training in the fundamentals of how to help parents manage what we sometimes call oppositional behaviors in their children in a much more positive way, reframing certain behaviors.
It included some really concrete parenting techniques that might be applicable to kids with ADHD or oppositionality. In essence, that’s what the enhanced care arm of this study got — a little more than a week of training for these young women.
In terms of outcomes, the study looked at a couple of things: We looked at the traditional symptoms of ADHD, which would be inattention and hyperactivity/impulsivity. We looked at oppositionality and we looked at social skills, which some people think is more important. Looking at kids a full year down the line, we were able to move the needle in these categories.”
So now what?
“The researcher in me wants to replicate this and be sort of guarded in interpreting the results,” Silverstein says. “Provided these results hold up, I think it’s an issue of implementation, and when people talk about the Patient-Centered Medical Home, we really have to think about what this has to look like for specific populations that have specific challenges.
I’ve been making the case that a thoughtful, coordinated way of providing care for low-income kids is through mechanisms that address the health of both generations, parents and children, and pay attention deliberately to issues of trust of the health care system and cultural brokerage.
That’s our hypothesis. One of the things about a study like this — a randomized trial is widely seen to be the gold standard in proving what happens when you do something — but when that something is complicated or has multiple facets to it, you’re often left saying, ‘Why, why did this particular project generate these results?’ And that’s a viable next step – to figure that out.
My gut sense is that the active ingredient of our care model was that this motivational interviewing component started a cascade of events that led to more discussion between family and pediatrician around prescribing patterns of ADHD medication and other culturally acceptable ways of addressing the symptoms.
At the end of the day we can’t say, ‘We know exactly what the active ingredient of this was.’ But it had to do with meeting the families where they are and having them accept certain elements of the care.”
Readers, reactions? Thoughts about using a model like this even in better-off families?
For more than three years, Devon Jones gave himself weekly shots of testosterone to align his body with the feeling that he was male. The shots worked. Jones’ voice dropped, body fat shifted from his thighs and breasts into his neck and stomach, and he sprouted facial hair.
But then last year, Jones, a 27-year-old author who lives in Dorchester, stopped taking the hormone.
“I realized that wasn’t the look I was ultimately going for,” Jones said. “I wanted to still have breasts that had substance to them, they’d really shrunk and I wanted that back.”
And Jones wants the option of getting pregnant and having a child, something he could not do while testosterone overpowered estrogen in his body. It’s not clear if he will be able to get pregnant now.
“I’ll only know that when I try,” he said.
Jones still use male pronouns. The changes to his voice are permanent. But as estrogen again becomes the dominant hormone in Jones’ body, the hair on his face doesn’t grow as quickly and his body fat has shifted back.
“I have a more curvy feminine shape. I’m more comfortable now with people being confused. So it’s an evolving process. It’s weird to be in the middle of it right now actually, and talking about it,” Jones said, his voice trailing off.
Jones is part of a growing group of young adults who are genderfluid and are using hormone therapy and surgery to create bodies that matches this identity.
“It’s molding my body to fit my mind, physically changing myself so that I feel more comfortable as a person,” said Dale Jackson, a 33-year-old author who lives in Atlanta. Jackson takes a low dose of testosterone for two reasons. First, because he’s worried that a full dose would exacerbate his anxiety. And second, because a half dose helps him moderate the effects.
“I like the idea of being in the middle,” Jackson said. “This allows me to explore my masculine side, but I don’t want to push it too far.” Jackson does not want a big bushy beard or arms so hairy “that gorillas were looking at me like, is that our cousin?”
Both Jones and Jackson are under the care of physicians who are helping them pursue a more gender neutral body. But there are no guidelines. So far, in the emerging world of transgender medicine, protocols assume that patients want to end up on one end of the spectrum or the other, male or female, says Dr. Tim Cavanaugh, who runs the transgender health program at Fenway Health.
“[The guidelines] really don’t address this idea of gender spectrum or gender fluidity, but we we see it a lot,” Cavanaugh said.
An estimated 100 to 150 of Fenways Health’s 1,500 transgender patients are genderfluid. Most of the genderfluid patients are transitioning from female towards male. So how do doctors know how much testosterone will produce the effects these patients are looking for?
“To a certain extent we’re making it up, but I’d like to think of it more as finessing the regimens that we have based on the individual person’s desires and needs,” Cavanaugh said. “[It’s difficult], especially with testosterone. Testosterone is very potent and even when we try to prescribe low doses, every person responds in a different way.”
Some doctors are uncomfortable with the idea of using medicine to experiment with changing social norms.
“But from the point of view of the Medical Society, this represents a population that is underserved,” said Dr. Marian Craighill, who chairs the committee on lesbian, gay, bisexual and transgender matters at the Massachusetts Medical Society. “We are definitely looking for more and more places where patients can go to get good and appropriate medical care.”
Doctors have lots of questions about transgender health, says Dr. Lachlan Forrow, director of ethics at Beth Israel Deaconess Medical Center. “But the fundamental driving factor has to be asking those questions as a way of compassionately and professionally helping this person in front of me.”
Some providers are guided by Catholic or other religious teachings that frown on any biological manipulation that changes the body. Father James Bretzke, who teaches moral theology at Boston College, says there’s a vigorous debate underway about gender theory that is testing that teaching.
“There is a line that would say there are only two genders and they are tied physically to the female and male genitalia,” Bretzke said. “Whereas many other theologians would argue that, at least to some extent, gender is a product of social construction.”
If gender is a product of social construction, then using medicine to fix every patient’s discomfort may not be the best long term solution, Cavanaugh says.
“I hope we are headed to a place where we recognize that gender is not one thing or the other, not male or female, and that culturally we can become more comfortable with that idea,” Cavanaugh said. “Hormones and surgery are always going to be options for people, but I really hope that we won’t feel compelled to use them as much as we do now.”
But for now, some genderfluid patients say they can not find peace without medical intervention.
“I had an incredible amount of dysphoria around my chest, it was consuming. I got to the point where in order for me to thrive and to do the work I wanted to be able to do and just live my life, I needed to have surgery,” said Taan Shapiro, a 33-year-old a teacher and parent in Boston who had surgery to create a flatter, more masculine looking chest.
Shapiro, who uses the pronouns they and them, says some strangers assume they is a teenage boy, others that Shapiro is female. Shapiro is not planning any more surgery or hormone therapy.
“Where I am is where I’m at and I feel good about myself,” Shapiro said, “[in a place] somewhere between male and female.”
By Ananda Lowe
The term “homebirth cesarean” didn’t exist before 2011, when Oregon mother and student midwife Courtney Jarecki coined it. But now, a Google search returns almost 2,000 entries on the topic.
The term refers to a small but emerging community of mothers who have experienced the extremes of birth: They’d planned to have their babies at home, but ended up in a hospital, most often in the operating room having a cesarean section, major abdominal surgery. Needless to say, the effect of such a dramatic course change takes a toll, and can often be overwhelming.
(“Homebirth cesarean” can also refer to births that were planned to occur at a freestanding birth center outside of a hospital, but eventually were transferred to the hospital for a cesarean.)
How often does this happen?
Home births, though a small fraction of the approximately 3.9 million births a year in the U.S., are on the rise. Based on the most recent birth data from the National Center for Health Statistics, “the 36,080 home births in 2013 accounted for 0.92% of all U.S. births that year, an increase of 55% from the 2004 total.”
Eugene Declercq, a professor of community health sciences at Boston University School of Public Health, studies national birth trends. He said in an email that while there are no nationwide numbers on homebirth transfers to the hospital, “the studies that have been done usually report about a 12% intrapartum transfer rate.”
But beyond the numbers, what happens emotionally when your warm and fuzzy image of natural childbirth in the comfort of home suddenly morphs into the hard reality of a surgical birth under fluorescent lights?
Jarecki founded the homebirth cesarean movement to figure that out. She connected women who, like herself, shared the experience of giving birth through full surgical intervention, despite their original plans of having their babies at home or outside of the established medical system.
In Jarecki’s case, she labored at home for 50 hours until her midwives detected a rare complication known as a constriction ring, or a thickened band of tissue in her uterus that was impeding progress. Shortly after this, meconium appeared, and Jarecki knew it was time to go to the hospital. Her emotional response to the intensity of the situation, however irrational, was one of anger, shame and failure at her ability to give birth normally. A cesarean followed.
Over the next several years, Jarecki began helping other homebirth cesarean mothers emerge from the silence and shame they felt confronting their unexpected surgeries. Some of these women also report that their postpartum recovery was tougher because their unique needs were not adequately addressed by their home birth midwives or their hospitals.
Jarecki started by launching a (now busy) Facebook page as a support group for these mothers and their health care providers.
Childbirth Expectations vs. Reality
Rule number one in childbirth is that it rarely unfolds as you expect.
For many of us who give birth in today’s strained health care climate, there can be a major disconnect between childbirth as it’s idealized, and maternity care as it is actually practiced. Sometimes that divide is difficult to talk about.
We often dream of tender, individualized care from our health and birth team on the most important day of our lives. I felt this way when I had my daughter at a Harvard teaching hospital four years ago — but I disagreed with my nurse-midwife’s decisions that day, and I’ve felt conflicted about the events of my labor ever since.
Also, as a longtime doula and childbirth educator, I’ve observed that many pregnant women with understandable anxiety about cesareans hold the view that it-just-won’t-happen-to-them.
In reality, some women’s births match their expectations, some don’t. Studies from Australia, Belgium, China, France, Saudi Arabia, the U.K. and the U.S. concur: when expectations match experience, that’s the single the most important factor in a woman’s ability to emotionally integrate the reality of childbirth. It’s not, as you might expect, about how painful labor was.
And unplanned cesareans have been linked to a higher risk of postpartum depression, researchers report.
For mothers transporting from home birth to hospital, there’s additional stress. Often the transfer happens without even a suitcase packed in advance. Adding to the potential trauma is the lack of an integrated system for home birth professionals to have hospital privileges or official relationships with doctors (at least in the U.S.); and perhaps the family’s psychological investment in avoiding a hospital in the first place by choosing to birth at home.
Cambridge mother Susan Koechner planned for home births, but ended up delivering her second child by cesarean at a hospital in 2011. She says: “I can understand the variety of emotions that come with ‘failed home births.'”
Women and Their Midwives
This week, Jarecki came out with a self-published book called “Homebirth Cesarean: Stories and Support for Families and Healthcare Providers,” along with a companion workbook for mothers.
I’ve been following Jarecki’s work for years, and I get it. As a longtime doula (professional childbirth coach) in Massachusetts, I’ve felt my own loss of words in helping some of my clients find resolution when their births resulted in unplanned medical treatments and/or cesareans. And often, it’s the close bond between birthing mothers and their midwives that unravels after a home birth has gone awry.
Margaret Rosenau of Louisville, CO said in an interview that she tried to talk to her home birth midwives multiple times after giving birth about her disappointment in some of their actions. She says they refused to acknowledge her point of view, and told her she should see a therapist to discuss her over-reaction.
Jarecki describes her immediate postpartum experience this way:
[Our midwives] Laurie and Kim made several extra home visits for two weeks after the birth, then regular postpartum care resumed. I felt comfort and confusion in their presence. Though I was invited to process the birth with them, there was an unspoken story between us, something no one wanted to talk about. My mind was in a state of chaos, both frenzied and vacant, and I was unable to ask for what I needed because I wasn’t sure what would help.
And her midwife, Laurie Perron Mednick, adds:
Walking with clients through difficult births is heart-wrenching work, and I did not yet have the wisdom to process my own feelings about homebirth cesareans. The result was that I carried layers of guilt, uncertainty, and unresolved grief into each birth I attended, and this baggage sometimes felt like a wound that never completely healed.
Nearly a year after she gave birth, Jarecki approached her midwives again and began a dialogue about the ways in which her needs had not been met, especially regarding her postpartum physical and mental health.
Going To Plan “C”
The book Homebirth Cesarean offers a unique contribution to the literature about care and support for women before, during and after childbirth. Chapters offer extensive suggestions about how to prepare any mother-to-be for the chance of an unexpected cesarean.
The bottom line: Talk about it in advance, in spite of any discomfort or resistance on the part of parents or midwives.
Jarecki and Mednick (her midwife and a co-author of the book) provide dozens of talking points to get these conversations started.
For instance, if a transport to the hospital is needed, mothers interviewed for the book expressed a need for their home birth midwives to stay engaged as advocates. Jarecki advises how this can happen:
A mother in the hospital relinquishes control of her labor, her body, her baby, and now she must contend with numerous interventions. She may feel unable to stop the train of madness that she perceives her birth is becoming, and she may surrender her decision-making autonomy. Furthermore, hospital staff rarely recognize and acknowledge the mental, spiritual, and emotional pain of a transport. Often they simply see a homebirth mother who might be difficult to work with because she is protesting interventions. But when hospital personnel do recognize the distress of transport and other choices in her care whenever possible, the mother can feel that she maintains her dignity and her right to self-determination.
With the guidance of her birth team, a mother can focus on her highest intention for the birth, and she can clarify and communicate her non-negotiables. For example, if she asserts her choice for no cervical checks without consent, being in the hospital can feel less like giving in, since her self-determination and power to negotiate for her needs are maintained. A laboring woman needs her partner and her birth team to help her advocate for her choices. Her midwife and doula can guide her as she asserts her right to respect, privacy, and safety. HBC mother Ann says, “I’ve wondered so many times why my midwives or doula didn’t remind me that I could have said no to all these strangers giving me rough vaginal exams. No one said that to me, and I really wish they had.”
As a doula myself whose training touched upon, but did not emphasize, planning for unexpected events in birth, I truly appreciated the following message from the book: As professionals, we can inform parents in our care that the reason we insist on cesarean preparation is that the risk of a cesarean turning traumatic rises sharply if the topic is ignored prenatally, but the procedure is ultimately needed.
In today’s maternity care, no one is officially assigned the role of helping families plan for their postpartum adjustment. (And what an adjustment it is!)
A midwife, doula, or birth class instructor may be the only person who can realistically take on this job (and many families don’t have access to those professionals). According to the book, this kind of strategizing before birth must be intentional, or there’s a good chance it won’t happen at all. (Particularly in the case of a cesarean, which means recovering from major surgery while caring for a highly dependent newborn.) Planning for household chores, lactation guidance and mental health bolstering should be sorted out in advance.
For families whose reality includes a homebirth cesarean, recovery comes through telling their story, Jarecki says. Not just once, and not in the way that will make others around them most comfortable. Some will integrate their experience more easily and quickly, while others will contend with normal feelings of self-blame or shame at not “succeeding” in fulfilling their original expectations.
According to Jarecki and Mednick’s findings, these strands of the birth story need to be examined one by one, and each statement a woman has latched on to — about her self-worth, for instance — must be be faced and reframed.
The International Cesarean Awareness Network (ICAN) is a nonprofit that aims to provide support and education about cesarean section. Kira Kim, leader of ICAN of Eastern Massachusetts, runs monthly meetings. She says when the topic turns to homebirth cesarean and emotional recovery, attendence is typically high. “It’s a safe place where women can be heard and validated, where these difficult conversations can be had openly and with respect.”
Sue Burns, a mother whose birth story appears in the homebirth cesarean book, says:
Because I got the “at least your baby is healthy” comment so often, so quickly, I immediately sequestered myself. I did not want to hear that…line. I felt invalidated. I did not want to look anyone in the face. I did not want anyone to see my shell-shocked, terrorized eyes and say, ‘But you are alive!’ I wanted and needed someone to say, ‘You are incredible. You are so strong. You are a mother. You obviously have out-of-this-world endurance and resilience!” Or better yet, “Yes, it hurts. It sucks you didn’t get to birth at home. I’m here for you.’ I finally was able to say those things to myself. I labored at home for a ridiculously long time. I endured. I had stamina and an unbelievably high pain tolerance. And then I did the thing I most didn’t want to do: I went to the hospital. I was brave enough to let someone cut me open and have major abdominal surgery AWAKE! so that I could be her mother. I am a warrior.
Readers, have you experienced a homebirth cesarean? Tell us your story.
Ananda Lowe is co-author of ‘The Doula Guide to Birth: Secrets Every Pregnant Woman Should Know’ (Bantam Books) and a student nurse living in Somerville, MA.
Lessons Churned: Measuring the Impact of Churn in Health and Human Services Programs on Participants and State and Local Agencies
The following is a guest post by Dante Figueroa, a senior legal information analyst at the Law Library of Congress.
I have previously written about the amazing collection of Roman law resources at the Law Library of Congress. I noted that references to Roman law have been made in arguments before, and in decisions of, U.S. courts, including the U.S. Supreme Court. In fact, the use of and reference to Roman law by U.S. courts has been widely documented. A U.S. law professor has stated that the use of Roman law by U.S. courts was “an integral part of the larger jurisprudential process by which American jurists reached back to find a line of argument to be employed in understanding the case.” (Samuel J. Astorino, Roman Law in American Law: Twentieth Century Cases of the Supreme Court, 40 Duq. L. Rev. 627 (2002).)
Some authors note that Roman law had an enormous influence on legal education and legal writers from “the colonial period to the time of the Dred Scott decision .” (Steven Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision , 47 Wm. & Mary L. Rev. 743, 761 (2005).) Another author argues that the use of Roman law by U.S. courts diminished by the 1920s for two reasons: World War I had “generated a broad anti-German feeling, thereby closing off a major source of civil law influence,” and due to the “dramatic decline in language skills, especially Greek and Latin, among lawyers and jurists.” (Astorino, supra, at 628). Research by academics has shown, however, that the U.S. Supreme Court did continue to make some use of Roman law during the twentieth century. (Calabresi, supra, at 760.)
The following list includes a number of earlier cases in which the U.S. Supreme Court made reference to Roman law:
- Columbian Insurance Company of Alexandria v. Ashby and Stribling, 38 U.S. 331 (1839): the Court analyzed Roman law in a matter concerning the bearing of risks in shipping contracts.
- Osborn v. Nicholson, 80 U.S. 654 (1871): this case concerned the issue of slavery and the Contract Clause of the Constitution.
- Ex Parte McNiel, 80 U.S. 13 Wall. 236 (1871): the Court considered Roman law concerning the issue of pilotage.
- Hurtado v. California, 110 U.S. 516 (1884): Analyzing the due process of law clause in the Constitution, and referring to Roman law, the Court stated that there was “nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age.”
- Coffin v. United States, 156 U.S. 432 (1895): the Court studied the presumption of innocence under Roman law.
- Geer v. Connecticut, 161 U.S. 519 (1896): concerning the state-ownership doctrine, in which the Court employed Roman law to analyze a “Connecticut statute that regulated the killing of game and prohibited its transportation outside of the state boundaries as an exception to the dormant Commerce Clause.”
- Hovey v. Elliott, 167 U.S. 409 (1897): the Court reviewed Roman law regarding the right to appear and be heard and for contempt of court.
- Hayes v. United States, 170 U.S. 637 (1898): in a dispute over title to land gained from Mexico, the Court discussed Roman law, particularly with respect to the error of law as a ground for acquiring property.
- United States v. Chavez, 175 U.S. 509 (1899): the Court reviewed the Roman law institution of adverse possession.
- Knowlton v. Moore, 178 U.S. 41 (1900): the Court looked into Roman law on the subject of “death duties [taxes].”
- Krulewitch v. United States, 336 U.S. 440 (1949): the Court highlighted that the doctrine of conspiracy was “utterly unknown to the Roman law.”
- Greene v. McElroy, 360 U.S. 474 (1959) & Coy v. Iowa, 487 U.S. 1012 (1988): in these cases the Court highlighted the history and importance of the right of confrontation of witnesses vis-à-vis the Sixth Amendment, with a mention to the origins of this right in Roman law.
These cases show that the U.S. Supreme Court has considered Roman law in relation to a range of issues. Concerning individual liberties, in Scott v. Sandford, 60 U.S. 393 (1857), Justice Daniel analyzed the issue of slavery in Roman law, drawing a parallel with the same institution as it existed in the United States. (See Calabresi, supra, at 798.) The Court has also discussed Roman law in commercial and trade disputes, agency law, and admiralty law. (Id. at 762.)
A number of other authors have also noted the influence that Roman law has had over U.S. law and common law systems more generally. The following are examples of resources available in the collections of the Library of Congress that relate to the role of Roman law in the U.S.:
- Paul du Plessis, Borkowski’s Textbook on Roman Law 190-2 (4th 2010).
- Carol Rose, Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age, 66 Law and Contemporary Problems 89-110 (Winter 2003) (analyzing the influence of “Roman law’s categories of nonexclusive property” on Western legal thinking, particularly on U.S. law).
- Randall Lesaffer, Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription, 16 European J. Int’l L. 38-46 (2005) (identifying the crucial influence of Roman law on occupation and acquisitive prescription on current international law).
- Richard A. Epstein, The Modern Uses of Ancient Law, 48 S.C.L. Rev. 243 (1997).
- Douglas G. Smith, Citizenship and the Fourteenth Amendment, 34 San Diego L. Rev. 681, 740 (1997) (describing the influence of Roman law on common law systems).
- Peter Stein, The Character and Influence of the Roman Civil Law: Historical Essays (1988).
- W. W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (1952).
- Caleb Cushing, On the Study of the Civil Law, 11 N. Am. Rev. 407 (1820).