Law Commons^™

The Plain Packaging Of Tobacco Products: A Submission To The New Zealand Parliament, Matthew Rimmer Dr

Matthew Rimmer

RECOMMENDATIONSRecommendation 1 New Zealand should introduce the plain packaging of tobacco products in order to implement the World Health Organization Framework Convention on Tobacco Control 2003 – in particular, Articles 11 and 13 of the agreement, and the accompanying guidelines.Recommendation 2 New Zealand should implement plain packaging of tobacco products, without delay or hesitation. There is no good reason to wait for the resolution of the five disputes between Australia and other countries in the World Trade Organization. Australian Government has a strong case. Its opponents have been seeking to stall and delay the disputes.Recommendation 3 In my expert opinion, …

Ivf And The Law: How Legal And Regulatory Neglect Compromised A Medical Breakthrough, Steve Calandrillo

Steve P. Calandrillo

The rise of assisted reproductive technology like in vitro fertilization (IVF) as a method of human reproduction represents a remarkable medical achievement. It has allowed millions of infertile and same-sex couples to have children who were previously only the subject of their unrequited dreams. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics “guarantee” a baby to clients who sign up. But with success comes inevitable downsides. Everyone knows that the price tag is steep, but given the demand, that obstacle seems to deter relatively few determined individuals. More insidious …

Virgin Fathers: Paternity Law, Assisted Reproductive Technology, And The Legal Bias Against Gay Dads, Elizabeth J. Levy

Elizabeth J Levy

In a small town called Bethlehem, the famous story goes, a young virgin woman gave birth to a son. At the heart of this story lies an enigma that would transform Western civilization: if a woman becomes pregnant without engaging in sexual intercourse with a man, then who is the father of her child? In the twenty-first century United States, the proliferation of assisted reproductive technology (ART) has given this metaphysical question a new significance. More specifically, how the law assigns paternity outside of sexual intercourse is relevant for all men who participate in ART and become “virgin fathers.” In …

Health Information Exchanges' Dirty Little Secret: The Infrastructure's Inability To Enforce Health Privacy Legislation, Gretchen E. Harper

Gretchen E Harper

Though the privacy of personal information may seem to be waning in American culture in the era of proliferating social media sites, the push for privacy in health information has remained. Unlike the restaurant check-in or the posted pet photo, data related to an individual’s health and morbidity is information our society continues to consider highly confidential. Along with the boom of electronic information exchanges and the ubiquity of personal data in various mediums, comes a great concern: privacy. Medical information is among the most sensitive types of personal information. The privacy of health information continues to be a vexing …

Brain Injury: Light At The End Of The Tunnel Through Research, Zoe Williams

Zoe Williams

Traumatic Brain Injury (TBI) is a common and unfortunate feature of our society. But significantly, developing research is helping assist us in our journey to improve medical responses.

The Uneasy Relationship Of Hobby Lobby, Conestoga Wood, The Affordable Care Act, And The Corporate Person: How A Historical Myth Continues To Bedevil The Legal System, Malcolm J. Harkins Iii

Malcolm J Harkins III

On November 26, 2013, the Supreme Court of the United States agreed to hear two cases — Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties v. Sebelius — challenging the validity of the Affordable Care Act’s (“ACA”) mandate that employer-sponsored health plans cover all FDA-approved contraceptives (the “Contraceptive Mandate”). In each case, closely held plaintiff corporations contend that the Contraceptive Mandate illegally infringed upon the corporations’ freedom to exercise religion.

The problem confronting the Supreme Court as it takes up the Hobby Lobby and Conestoga Wood cases is that the concept of corporate personhood did not develop gradually …

The Dialectics Of Wrongful Life And Wrongful Birth Claims In Israel: A Disability Critique, Sagit Mor

Sagit Mor

No abstract provided.

Multipolarity, Intellectual Property And The Internationalization Of Public Health Law, Sam Halabi

Sam Halabi

This Article critically examines the proliferation of international legal agreements addressing global health threats like the outbreak of infectious diseases, tobacco use and lack of access to affordable medicines. The conventional wisdom behind this trend is that a global normative shift has occurred which has caused states to regard health as “special” and less subject to the normal rules of international law making because health threats endanger all of humanity. This Article challenges that thesis, arguing that at the same time the number and scope of international health law treaties has grown, developed states have subordinated health law to intellectual …

Australian Plain Packaging Law, International Litigations And Regulatory Chilling Effect, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

Introduction of plain packaging law by Australia in 2012 was met with strong opposition from transnational tobacco companies (TTCs). While advocates of the law see it as a logical step in governmental efforts to curb tobacco use and improve public health in Australia, TTCs claim that the new law is scientifically unsound, overly intrusive and that it infringes a number of international law provisions relating to trademark and property protection. Some TTCs, either directly or indirectly,have decided to test the Australian measure before international tribunals. Although, these challenges are connectedwith interests held by TTCs in Australia, they should be seen …

Ebola And Bioterrorism, Joshua P. Monroe

Joshua P Monroe

This paper will be a comparison of the United States government’s reaction to the recent outbreak of Ebola and will compare this response with the potential response by the United States government toward an act of biological or chemical warfare. The paper will analyze these responses from a cultural, political, legal, and policy standpoint

Invalid Testimony: Disability And Voice In The Criminal Procedure (Co-Authored With Osnat Ein-Dor) (Hebrew), Sagit Mor

Sagit Mor

This Article discuses the sociolegal reality that people with developmental and mental disabilities experience in their interaction with the criminal justice system and the challenges that the criminal system faces when it comes to deal with a case which involves a disabled person. It maintains that the barriers that disabled people face in criminal proceedings do not exist only in pre-trial stages, but also during the trial itself, since courts, too, are impacted by exclusionary legal rules and by cognitive schemas that express negative stereotypes. In 2005 a new law was introduced in Israel: Investigation and Testimony Proceedings (Accommodations for …

The Empire Of Cancer: Gene Patents And Cancer Voices, Matthew Rimmer

Matthew Rimmer

In his book, The Emperor of All Maladies, Siddhartha Mukherjee writes a history of cancer — ‘It is a chronicle of an ancient disease — once a clandestine, “whispered-about” illness — that has metamorphosed into a lethal shape-shifting entity imbued with such penetrating metaphorical, medical, scientific, and political potency that cancer is often described as the defining plague of our generation’.Increasingly, an important theme in the history of cancer is the role of law, particularly in the field of intellectual property law. It is striking that a number of contemporary policy debates over intellectual property and public health have concerned …

The Tbt Agreement And Tobacco Control Regulations, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

The article analyses reports issued by the panel and the Appellate Body in the US – Measures Affecting the Productions and Sale of Clove Cigarettes dispute and attempts to assess their broader consequences for national tobacco control policies. Both reports are particularly important because they clarify the limits existing under WTO law, in particular the TBT Agreement, in this policy space. In this context, the article investigates whether the WTO dispute settlement bodies interpreted relevant rules of the TBT Agreement in a manner that provides countries with sufficient regulatory autonomy while ensuring at the same time that their technical measures …

The Who Protocol To Eliminate Illicit Trade In Tobacco Products: A Next Step In International Control Of Tobacco Products, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

This report discusses the main provisions of the recently adopted WHO Protocol to Eliminate Illicit Trade in Tobacco Products. While recognizing the remarkable achievement of the global community in its efforts to curb illicit trade in tobacco products at the international level, the report also highlights those aspects of the Protocol that may undermine its effectiveness in the long-term perspective. In this context the enforcement capabilities of developing countries are cited as a main concern.

Where Babies And Death-Row Inmates Intersect: Is Arbitrary Agency Decision-Making Supported Under Existing Law?, Lisa C. Blanton Bs., Mj.

Lisa C. Blanton BS., MJ.

The Food and Drug Administration (FDA) is the executive branch regulatory agency primarily responsible for protecting the nation’s drug products.^[1] The FDA recently made highly inconsistent decisions surrounding a new drug for the prevention of pre-term birth, Makena™ (hydroxyprogesterone caproate). During a lengthy approval process, FDA made laudatory public announcements and demonstrated high programmatic preference to expedite approval of Makena by assigning orphan status^[2] and granting accelerated “fast-track” approval time-frames.^[3] Despite these actions, within weeks of the approval, the FDA issued aggressive public statements against the product’s efficacy and safety and made supportive comments about a non-FDA …

Privacy As A Tool For Antidiscrimination, Jessica Roberts

Jessica L. Roberts

Traditionally, laws that protect privacy and laws that prohibit discrimination have been considered distinct kinds of legal protections. This Essay challenges that binary on both practical and theoretical grounds. Using the Genetic Information Nondiscrimination Act (GINA) as a case study, it argues that lawmakers can use privacy law to further antidiscrimination goals. GINA, which prohibits genetic-information discrimination in health insurance and employment, does more than simply outlaw discriminatory conduct. It also prohibits employers from requiring—or even requesting—their employees’ genetic information. While GINA’s privacy and antidiscrimination protections have previously been viewed as discrete, this Essay reads them in concert, arguing that …

Synaptic Plasticity In Neurological Deficit As A Form Of Indemnification: The Utility Of Analogical Thinking, Madeleine Schachter, Madeleine Schachter

Madeleine Schachter

The need for creative problem-solving is as infinite as are the ways in which to engage in it. This article posits that one useful, albeit not flawless, mechanism in which to seek scientific advancements is through the use of analogical thinking. The technique has been invoked in virtually all disciplines, sometimes successfully and sometimes not. The utility of thinking by analogy lies, paradoxically, in its capacity to conceptualize a solution or a viable avenue of further inquiry as much as in its capacity to expose flaws in the analogical concept hypothesized. As such, it is an important means of stimulating …

Consentimiento Informado: Un Derecho Fundamental En La Relación Médico Paciente., Guillermo Castorena

Guillermo Castorena

Este derecho está basado en el principio de autonomía. Se trata de un derecho humano del paciente, aunque por otra parte, podría verse también como un elemento estructural esencial del contrato de servicios médicos, esto es, la esencia misma de ese acto médico-jurídico. De esa manera, la voluntad del paciente para someterse a un procedimiento médico o quirúrgico con fines diagnósticos, terapéuticos, rehabilitatorios o paliativos, se formará por un proceso de información, entendimiento, razonamiento y manifestación de la voluntad.

A Submission To The House Of Representatives Standing Committee On Social Policy And Legal Affairs On The Intellectual Property Laws Amendment Bill 2013 (Cth), Matthew Rimmer

Matthew Rimmer

The amendments contained in the Intellectual Property Laws Amendment Bill 2013 (Cth) are designed to provide safeguards in relation to patent law and the public interest.In the 2012 case on plain packaging, the Chief Justice of the High Court of Australia, Robert French, emphasized that the role of intellectual property law is to promote public objectives. His Honour observed: ‘There are and always have been purposive elements reflecting public policy considerations which inform the statutory creation of intellectual property rights.’ Discussing the role of patent law, Chief Justice Robert French commented:The Patents Act 1990 (Cth) provides that a patent gives …

The University's Right To Quarantine: Analyzing Student Health Laws With Regards To Epidemic Situations, Audra Phillips

Audra Phillips

No abstract provided.

Combating Obesity With A Right To Nutrition, Paul Diller

Paul Diller

Domestic and international law have, in different ways, recognized a human right to food since the twentieth century. The original reason for this recognition was the need to alleviate a particular type of food insecurity—“traditional” hunger, as manifested in conditions like malnutrition and underweight. The current public-health crisis of obesity, however, demands a reconsideration of this right. The food environment in the United States today is awash in high-calorie, low-nutrient food products that are often cheaper, on a relative basis, than more nutritious foods, leading to the overconsumption of the former by much of the American population. Merely ensuring a …

A Failure To Consider: Why Lawmakers Create Risk By Ignoring Trade Obligations, David R. Kocan Professor

David R. Kocan Professor

The U.S. Congress frequently passes laws facially unrelated to trade that significantly impact U.S. trade relations. These impacts are often harmful, significant, and long-lasting. Despite this fact, these bills rarely receive adequate consideration of how they will impact trade. Without this consideration, Congress cannot properly conduct a cost-benefit analysis necessary to pass effective laws. To remedy this problem, the U.S. Trade Representative should evaluate U.S. domestic law to determine whether it is consistent with international trade obligations. Moreover, the U.S. Congress committee structure should be amended so that laws that might impact trade are considered within that light. In the …

Pirates Of The Australian Election, Matthew Rimmer

Matthew Rimmer

“Pirate parties” have proliferated across Europe and North America in the past decade, championing issues such as intellectual property (IP), freedom of speech, and the protection of privacy and anonymity.This year, the movement hit Australian shores: The Pirate Party Australia was officially registered by the Australian Electoral Commission in January 2013. (You can read its principles and platform here.)“More than ever before, there is a necessity in Australia for a party that holds empowerment, participation, free culture and openness as its central tenets”, Pirate Party founder Rodney Serkowski said in a press release announcing the group’s successful registration. Their first …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Peril In The Patchwork: Ensuring Health Care Privacy For Children In Foster Care, Scarlet R. Smith

Scarlet R. Smith

No abstract provided.

For Health's Sake Be Not Colorblind, Ruth Hackford-Peer

Ruth Hackford-Peer

The United States’ past ideology of overt state-sanctioned racism has been replaced by a covert, seemingly race-neutral ideology. This Article looks at the history of racism in the United States and traces the recent shift in ideology and discourse about race, positing that the discourse of “colorblindness” powerfully maintains the racial status quo while purporting to advance race neutrality. Then, using affirmative action as the lens from which to view these shifts in ideology and discourse, this Article analyzes racial disparities in health and healthcare. It highlights some of the health consequences people of color face because they live a …

Challenging Hospital Vbac Bans Through Tort Liability, Indra Lusero

Indra Lusero

With millions of women experiencing primary c-sections every year, millions more face repeat surgery for subsequent births. Because of hospital bans on vaginal birth after cesarean (VBAC), many of these women will have no option to give birth vaginally. Women are looking for remedies to this invasion of their right to informed consent. This article explores the two main avenues for making a torts claim against the hospital for such a ban: corporate negligence and vicarious liability. Through an exploration of the relevant case law in these areas, the significant opportunities and challenges of tort remedies for hospital VBAC bans …

Health Care Reform: Walking The Fine Line Between Epic And Tragic, Craig B. Garner

Craig B. Garner

The recent changes to the core structure of modern American health care are nothing short of epic, rivaled in historic scale only by the introduction of Medicare in 1965. Although each decade over the past 50 years has in some way used government programs and incentives in an attempt to urge health care to undergo recalibration as a means to establish industry stability, by the end of the first decade of the 21st Century it had become evident that health care in the United States was fast becoming unsustainable as it existed. Three years after the Federal Government passed the …

The Organic Foods Production Act, The Process/Product Distinction, And A Case For More End Product Regulation In The Organic Foods Market, Valerie J. Watnick

Valerie J. Watnick

No abstract provided.

Commensal Microbiotica - Biological Frontier And Legal Challenge, Kenneth L. Sanders Md

Kenneth L Sanders MD

Recent advances in bacteriology and medical science affirm that the commensal relationship between surface microbial flora and the human host is intricate and important. Legal theory has thus far lagged behind the impact of the medical discoveries.