Abigail R. Moncrieff

Associate Professor of Law

Peter Paul Career Development Professor

BA, cum laude, Wellesley College
JD with honors, University of Chicago Law School

Areas of Interest
Constitutional Law, Economics & Law, Health Law, Legislative Process

Associate Professor Abigail R. Moncrieff focuses her scholarly work on structural governmental barriers to efficiency in health care payment and delivery, as well as writing more broadly on structural constitutional law.  Professor Moncrieff has published articles on both federalism and separation of powers, publishing on the major questions exception to Chevron deference in Administrative Law Review, on healthcare federalism and separation of powers in Boston University Law Review, and on federalism issues in medical malpractice (and more broadly proposing a concept of “federalization snowballs”) in Columbia Law Review.  Her current project takes a structural view of individual substantive rights in American constitutional law and argues from that structural perspective that substantive due process should protect individual autonomy in healthcare decision-making.  At BU Law, Professor Moncrieff teaches the required first-year Legislation course, the Health Law survey course, and a seminar on Health Care Reform and the Constitution.  Before joining BU, Professor Moncrieff clerked for Judge Sidney R. Thomas on the Ninth Circuit Court of Appeals, and she was a research fellow at Harvard Law School’s Petrie-Flom Center on Health Law Policy, Biotechnology, and Bioethics.  Professor Moncrieff earned her JD from University of Chicago Law School in 2006, completed a Fulbright Fellowship on comparative health care policy in Switzerland in 2003, and earned her BA from Wellesley College in 2002.

  1. Abigail Moncrieff, "King, Chevron, and the Age of Textualism," Boston University Law Review Annex (2015). [Essay]
  2. Abigail Moncrieff & Jonathan Dinerstein, "Will Uncooperative Federalism Survive NFIB?" 76 Montana Law Review 75 (2015).
    SSRN | HeinOnline (BU) | HeinOnline
  3. Abigail Moncrieff & Manisha Padi, "Beyond Payment and Delivery Reform: The Individual Mandate's Cost-Control Potential," in Symposium Improved Health at a Reduced Cost? Economic Perspectives on the Patient Protection & Affordable Care Act, 40 American Journal of Law & Medicine 185 (2014).
  4. Abigail Moncrieff, "The Individual Mandate as Healthcare Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius," 39 American Journal of Law & Medicine 539 (2013).
  5. Abigail Moncrieff, Brief of Amici Curiae Prescription Policy Choices, Professors of Law, and Professors of Health Policy in Support of Petitioners on the Minimum Coverage Provision, Florida v. Dept. of Health & Human Svcs., U.S. Supreme Court, No. 11-398 (Jan. 13, 2012). [principal author under supervision of Professor M. Kevin Outterson and with students David J. Arnold, Julia G. Mirabella, Kyle Thomson, and Hao Wang]
    SSRN | Publisher
  6. Abigail Moncrieff, Brief of Amici Curiae Jewish Alliance for Law & Social Action (JALSA), Jewish Council on Urban Affairs (JCUA), Jewish Social Policy Action Network (JSPAN), New England Jewish Labor Committee (JLC), and Professor Abigail R. Moncrieff in Support, U.S. Supreme Court, No. 11-398 (Jan. 13, 2012). [principal author under supervision of attorney Andrew M. Fischer and with students Zoë Sajor, Rachel Smit, and Emily Westfall]
    SSRN | Publisher
  7. Abigail Moncrieff, "Common-Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate," in Symposium Originalism and Living Constitutionalism: A Symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution, 92 Boston University Law Review 1245 (2012).
  8. Abigail Moncrieff, "Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond," 37 American Journal of Law & Medicine 288 (2012).
  9. Abigail Moncrieff, "Obamacare's (3) Day(s) in Court," 141 Chest 1389 (2012).
    SSRN | Publisher
  10. Abigail Moncrieff, "Safeguarding the Safeguards: The ACA Litigation and the Extension of Structural Protection to Non-Fundamental Liberties," 64 Florida Law Review 639 (2012).
  11. Abigail Moncrieff, "Transcript: The Case for National Political (Rather than State or Judicial) Regulation of Healthcare," 36 Vermont Law Review 823 (2011-12).
    HeinOnline (BU) | HeinOnline
  12. Abigail Moncrieff, "Understanding the Failure of Health-Care Exceptionalism in the Supreme Court's Obamacare Decision," 142 Chest 559 (Sep 2012).
  13. Abigail Moncrieff, "The Freedom of Health," in Symposium The New American Health Care System: Reform, Revolution, or Missed Opportunity, 159 University of Pennsylvania Law Review 2209 (2011).
    SSRN | HeinOnline (BU) | HeinOnline
  14. Abigail Moncrieff & Eric Lee, "The Positive Case for Centralization in Health Care Regulation: The Federalism Failures of the ACA," in Symposium The Role of States in Federal Health Care Reform, 20 Kansas Journal of Law & Public Policy 266 (2011).
    SSRN | HeinOnline (BU) | HeinOnline
  15. Abigail Moncrieff, "The Supreme Court's Assault on Litigation: Why (and How) It Could Be Good for Health Law," 90 Boston University Law Review 2323 (2010).
    SSRN | HeinOnline (BU) | HeinOnline
  16. Abigail Moncrieff, "A Closer Look at the Federalization Snowball," 109 Columbia Law Review Sidebar (2009).
  17. Abigail Moncrieff, "Federalization Snowballs: The Need for National Action in Medical Malpractice Reform," 109 Columbia Law Review 844 (2009).
    SSRN | HeinOnline (BU) | HeinOnline
  18. Abigail Moncrieff, "Reincarnating the 'Major Questions' Exception to Chevron Deference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got It Wrong)," 60 Administrative Law Review 593 (2008).
    SSRN | HeinOnline
  19. Abigail Moncrieff, "Payments to Medicaid Doctors: Interpreting the Equal Access Provision," 73 University of Chicago Law Review 673 (2006). [Comment]
    HeinOnline (BU) | HeinOnline

4 credits

This course will examine the nature and functions of federal administrative agencies and the legal controls on agency action. Agency action is situated and examined in its political and legal contexts. Topics include the status of administrative agencies in the constitutional framework of separation of powers including the non-delegation doctrine, the President's appointment and removal powers in light of the unitary executive, the constitutionality of the legislative and line-item vetoes, the constitutionality of agency adjudication, and the constitutional (and political) status of independent agencies; agency rulemaking and adjudication including the choice of procedural model and the procedural requirements of the rulemaking model; and the availability, timing and scope of judicial review of agency action including standing to seek judicial review and exceptions to the availability of judicial review. The course also examines different methods of policy analysis such as regulatory impact analysis and cost-benefit analysis. Additional topics include discriminatory enforcement, regulatory delay, judicial imposition of procedural constraints on agencies, the implication of private rights of action from regulatory statutes and the availability citizens' suits. Some attention may be paid to differences between state and federal separation of powers doctrines. GRADING NOTICE: This course will not offer the CR/NC/H option.

FALL 2015: LAW JD 801 A1 , Aug 31st to Dec 2nd 2015
Days Start End Credits Instructors Bldg Room
Mon,Wed 10:40 am 12:40 pm 4 Abigail R. Moncrieff LAW 414
SPRG 2016: LAW JD 801 D1 , Jan 11th to Apr 20th 2016
Days Start End Credits Instructors Bldg Room
Mon,Wed 10:40 am 12:40 pm 4 Colin S. Diver LAW 414
SPRG 2016: LAW JD 801 L1 , Jan 12th to Apr 19th 2016
Days Start End Credits Instructors Bldg Room
Tue,Thu 10:40 am 12:40 pm 4 Gary S. Lawson LAW 414
FALL 2016: LAW JD 801 A1 , Sep 7th to Dec 7th 2016
Days Start End Credits Instructors Bldg Room
Mon,Wed 10:40 am 12:40 pm 4 Colin S. Diver LAW 209

3 credits

This course examines health care law from the perspectives of the individual and the state. Broad topics include the common law of medicine; the scope of state power over individual medical choices (individual rights); the division of regulatory power between national and state governments (federalism); and the division of power among legislative, executive, and judicial branches (separation of powers). Specific topics include the doctor-patient relationship; informed consent; medical malpractice; confidentiality and privacy; regulation of contagious disease, smoking, and obesity; regulation of illicit and prescription drugs; and regulation of insurance, especially through the Affordable Care Act's market reforms, mandate, and subsidies and under Medicare and Medicaid. The goal of the course will be to deepen understanding of the relationship between the individual and the state in making choices about short- and long-term health, critically evaluating assertions of state interest to regulate human bodies and lives and equally critically evaluating assertions of individual freedom to make healthcare choices.

FALL 2015: LAW JD 865 A1 , Aug 31st to Dec 2nd 2015
Days Start End Credits Instructors Bldg Room
Mon,Wed 2:10 pm 3:35 pm 3 Abigail R. Moncrieff LAW 209
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