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Articles 1 - 18 of 18
Full-Text Articles in Law
A Trigger Warning: Red Flag Laws Are Still Constitutionally Permissible And Could Reduce The Suicide Rates In The Country's Most Vulnerable States, Joseph C. Campbell
A Trigger Warning: Red Flag Laws Are Still Constitutionally Permissible And Could Reduce The Suicide Rates In The Country's Most Vulnerable States, Joseph C. Campbell
Journal of Law and Health
Montana, Alaska, and Wyoming lead the United States in a category coveted by no one: the suicide rate. Firearm ownership drives the rate to the disproportionate level it reaches year after year and the states are left with little recourse. This article argues the usefulness and constitutionality of narrowly tailored red-flag laws aimed exclusively at reducing the rate of suicide in these mountain states. The article follows Supreme Court jurisprudence leading up to New York Rifle & Pistol Association v. Bruen and offers an analysis that complies with the hyper textualist history and tradition test laid out by Scalia in …
California V. Texas: Avoiding An Antidemocratic Outcome, Jon Lucas
California V. Texas: Avoiding An Antidemocratic Outcome, Jon Lucas
Journal of Law and Health
The Affordable Care Act (“ACA”) contains a section titled “Requirement to Maintain Essential Minimum Coverage.” Colloquially known as the Individual Mandate, this section of the Act initially established a monetary penalty for anyone who did not maintain health insurance in a given tax year. But with the passage of the Tax Cuts and Jobs Act, the monetary penalty was reset to zero, inducing opponents of the ACA to mount a legal challenge over the Individual Mandate’s constitutionality. As the third major legal challenge to the ACA, California v. Texas saw the Supreme Court punt on the merits and instead decide …
The Ninth Amendment: An Underutilized Protection For Reproductive Choice, Layne Huff
The Ninth Amendment: An Underutilized Protection For Reproductive Choice, Layne Huff
Journal of Law and Health
Concern about individual rights and the desire to protect them has been part of our nation since its founding, and continues to be so today. The Ninth Amendment was created to assuage the Framers’ concerns that enumerating some rights in the Bill of Rights would leave unenumerated rights unrecognized and unprotected, affirming that those rights are not disparaged or denied by their lack of textual support. The Ninth Amendment has appeared infrequently in our jurisprudence, and Courts initially construed it rather narrowly. But starting in the 1960s, the Ninth Amendment emerged as a powerful tool not just for recognizing unanticipated …
Face Off: Overcoming The Fifth Amendment Conflict Between Cybersecurity And Self-Incrimination, Zachary E. Jacobson
Face Off: Overcoming The Fifth Amendment Conflict Between Cybersecurity And Self-Incrimination, Zachary E. Jacobson
Journal of Law and Health
The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the …
Death By Detox: Substance Withdrawal, A Possible Death Row For Individuals In Custody, Dorothea R. Carleton
Death By Detox: Substance Withdrawal, A Possible Death Row For Individuals In Custody, Dorothea R. Carleton
Journal of Law and Health
Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to …
Keep Your Friends Close And Your Medical Records Closer: Defining The Extent To Which A Constitutional Right To Informational Privacy Protects Medical Records, Lauren Newman
Journal of Law and Health
The following Article discusses the extent to which the constitutional right to informational privacy protects medical data from improper acquisition or dissemination by state agents. Part I provides background on Whalen v. Roe, the Supreme Court case that has been understood to establish the right to informational privacy. Part I also discusses the variations across the circuit courts as to what medical information is afforded protection by the right. Part II analyzes the well-established approaches adopted by the Second and Third Circuits as they present opposing interpretations of Whalen, one wholly protecting medical information and the other protecting …
The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden
The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden
Journal of Law and Health
The fundamental focus of this Article is whether the decision not to buy individual health insurance as required by Congress also qualifies as valid economic activity under the Commerce Clause. This question before the Court continues the modern battle regarding the scope of Congress’s power under the Commerce Clause, and the battle regarding the regulation of economic activity continues, irrespective of the Supreme Court decision regarding PPACA, because of the continuing impact of the Supreme Court’s holding in United States v. Lopez. Part II of this Article contends that the decision not to purchase health insurance is not to be …
Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu
Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu
Journal of Law and Health
Since a great paradox lies beneath the universal health insurance mandate debate in both Taiwan and the U.S., Taiwan’s experience clarifying the constitutionality of its compulsory universal health insurance program might provide valuable lessons to the U.S. The goal of this Article is to provide a theoretical basis, based upon the human rights impact assessment in public health policies and a Rawlsian theory of justice, to decide whether the restriction on individual liberty imposed by Taiwan’s compulsory NHI is constitutionally justified. An analytic four-step assessment is established to evaluate the NHI’s burden on individual liberties: (1) examine the importance, legitimacy, …
Organ Conscription: How The Dead Can Save The Living, David Schwark
Organ Conscription: How The Dead Can Save The Living, David Schwark
Journal of Law and Health
This Note will examine the failures of uncompensated and voluntary donation and argue that the only way to meet our country's organ needs is to make donation mandatory. Part II of this Note examines the history of voluntary organ donation in the United States. This history describes the evolution of organ donation laws from the first transplant until the present day. Part II also details the consequences and shortcomings of the current system. Part III examines three other proposed solutions to the organ deficit. These possible solutions include routine requests, an organ market, and presumed consent. However, none of these …
Through A Scanner Darkly: The Use Of Fmri As Evidence Of Mens Rea, Teneille Brown, Emily R. Murphy
Through A Scanner Darkly: The Use Of Fmri As Evidence Of Mens Rea, Teneille Brown, Emily R. Murphy
Journal of Law and Health
Tonight we are pleased to host an event exploring fMRI and its legal significance. Although [neuroimaging] is still an emerging technology, it has proven to be very consequential in at least one situation. In September 2008, the New York Times reported that a court in India allowed the use of brain scan images in a criminal case, which ultimately led to the conviction of an Indian woman accused of poisoning her fiance. To this day, the Indian woman maintains her innocence. Hank Greely, a bioethicist at Stanford Law School and a colleague of our speakers, commented on the verdict, [characterizing …
Inconsistent State Court Rulings Concerning Pregnancy-Related Behaviors, Lidia Hoffman, Monica K. Miller
Inconsistent State Court Rulings Concerning Pregnancy-Related Behaviors, Lidia Hoffman, Monica K. Miller
Journal of Law and Health
State courts vary in their willingness to protect pregnant women's rights to self-determination, bodily integrity, privacy, and religious freedom; these rights are sometimes outweighed by fetal rights to live. Different state courts have issued many competing decisions, which emphasizes a lack of unification in this area of law. This inconsistency in the law creates confusion for women concerning the scope of their legal protections and alters women's selection of prenatal care and decision to give birth. Thus, it is important to recognize the prevailing themes and grounds on which courts have rested their opinions. An analysis of these state court …
Harnessing The Hired Guns: The Substantive Nature Of Ohio Revised Code 2743.43 Under Article Iv, Section 5(B) Of The Ohio Constitution, Patrick Vrobel
Harnessing The Hired Guns: The Substantive Nature Of Ohio Revised Code 2743.43 Under Article Iv, Section 5(B) Of The Ohio Constitution, Patrick Vrobel
Journal of Law and Health
Under Article IV, Section 5(B), rules of procedure that impact the substantive rights of Ohio citizens are considered far too important to be encroached upon by the judiciary. Rules affecting substantive rights, therefore, have been expressly delegated to the legislature. Because rules that regulate the competency of medical experts inevitably encroach upon the ability of a tort victim to seek redress in a court of law, such rules impact substantive rights in very real and tangible ways. As a result, the medical expert statute must control. To find otherwise would permit the judiciary to encroach upon the substantive rights of …
Stunning Trends In Shocking Crimes: A Comprehensive Analysis Of Taser Weapons, Shaun H. Kedir
Stunning Trends In Shocking Crimes: A Comprehensive Analysis Of Taser Weapons, Shaun H. Kedir
Journal of Law and Health
In 2001, Westminster, Colorado police officers were dispatched to the home of a suicidal thirteen year-old girl who had barricaded herself in a bathroom. The young girl was mutilating her wrist with two butcher knives. When police officers forced their way into the bathroom, the emotionally disturbed girl charged at them with the two butcher knives while screaming, "Kill me! Kill me!." One of the officers deployed a Taser M26, a hand held conductive energy weapon, which fires two barbed darts up to a distance of thirty-five feet that then deliver an electric shock of 50,000 volts. The officer's Taser …
Federally Mandated Informed Consent: Has Government Gone Too Far, Linda P. Mckenzie
Federally Mandated Informed Consent: Has Government Gone Too Far, Linda P. Mckenzie
Journal of Law and Health
Laws mandating disclosure of particular information are known as informed consent laws. They exist primarily in the area of reproductive health and most often apply to women seeking abortion. This article discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures. Part II examines some of the ethical implications of informed consent laws. Physicians have a duty to obtain a patient's informed consent before acting. Part III discusses legal concerns raised by informed consent laws. These include the First Amendment free speech rights of physicians and patients' …
How Ohio V. Talty Provided For Future Bans On Procreation And The Consequences That Action Brings: Ohio V. Talty: Hiding In The Shadow Of The Supreme Court Of Wisconsin, Evelyn Holmer
Journal of Law and Health
This Note discusses the constitutionality of antireproduction restrictions as they relate to the purposes and goals of probation, in the context of the Talty, Oakley, and Tramnell decisions. This Note addresses the ramifications and implications of these restrictions in relation to the deadbeat parent crisis, and it proposes more adequate means to accomplish the competing goals of child welfare and adherence to constitutional doctrine. Section II introduces and dissects the fundamental right to procreate as it is found under two concepts: the right itself and the right to privacy. Section III discusses the purposes of probation, generally, and articulates two …
Constitutional Classifications And The Gay Gene, Susan Becker
Constitutional Classifications And The Gay Gene, Susan Becker
Journal of Law and Health
What I am going to talk about is the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called "gay gene" on legal classifications. What is really important here, and the reason I need to offer you a primer on constitutional law, is so that we all start on the same page by understanding how our laws, starting with the federal constitution, classify people for the purpose of bestowing or denying rights and benefits. This leads us to an understanding of why people object to various classifications, and an appreciation …
Beyond Washington V. Glucksberg: Oregon's Death With Dignity Act Analyzed From Medical And Constitutional Perspectives , Steven B. Datlof
Beyond Washington V. Glucksberg: Oregon's Death With Dignity Act Analyzed From Medical And Constitutional Perspectives , Steven B. Datlof
Journal of Law and Health
This Article examines several aspects of the medical and legal debate on physician-assisted suicide. Part I describes the Oregon Death with Dignity Act, the only existing American law legalizing physician assisted suicide. Understanding the provisions of the DWDA provides a concrete, practical framework for discussing the medical and constitutional issues central to the PAS debate. Part II considers the wisdom of the DWDA in light of current medical knowledge and practice. The law allows a patient, with only a few months to live, a human end to intolerable suffering under controlled conditions. It is carefully crafted to ensure that patient …
Constitutional Concerns In Drug Testing, Gordon J. Beggs
Constitutional Concerns In Drug Testing, Gordon J. Beggs
Journal of Law and Health
*this is not an article, rather a summary of recent case law and authority"