Law Commons^™

The Rise And Fall Of A Reproductive Right: Dobbs V. Jackson Women’S Health Organization, Carol Sanger

Faculty Scholarship

Although the phrase “Post-Roe Era” is still used by those who want to underscore the loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus tossing the issue of abortion’s legality back to the states for …

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …

Transparency Of Regulatory Data Across The European Medicines Agency, Health Canada, And Us Food And Drug Administration, Alexander C. Egilman, Amy Kapczynski, Margaret E. Mccarthy, Anita T. Luxkaranayagam, Christopher J. Morten, Matthew Herder, Joshua D. Wallach, Joseph S. Ross

Faculty Scholarship

Based on an analysis of relevant laws and policies, regulator data portals, and information requests, we find that clinical data, including clinical study reports, submitted to the European Medicines Agency and Health Canada to support approval of medicines are routinely made publicly available.

"Everybody Knows I'M Not Lazy": Medicaid Work Requirements And The Expressive Content Of Law, Kristen Underhill

Faculty Scholarship

In a first for the Medicaid program, the Department of Health and Human Services under President Trump allowed states to establish work requirements for program participants who are considered "able-bodied adults." These mandates were halted by litigation, and President Biden's administration is now in the process of withdrawing the waivers. But early experiences with Medicaid work requirements suggested that they can produce widespread losses of benefits. In addition to affecting access, work requirements and other conditions on public benefits can serve an expressive purpose: they provide a source of information about a state's values, goals, and beliefs about beneficiaries. Beneficiaries …

The Healthcare System And Pandemics: Where Is The Market Failure?, Sophia S. Helland, Edward R. Morrison

Faculty Scholarship

Barak D. Richman and Steven L. Schwarcz argue that healthcare providers played a central – and failing – role in stemming the fallout from the COVID-19 pandemic. Analogizing to the financial crisis of 2008, they view our healthcare system as a collection of providers, each maximizing returns to its own stakeholders in a laissez-faire regulatory environment that ignored the essential interconnectedness of providers. Because neither hospitals nor regulators were attuned to this interconnectedness, our healthcare system was unprepared for the pandemic, resulting in a reduced standard of care. Just as Dodd-Frank and related legislation view financial institutions as part of …

Should The U.S. Government Actively Assert Its Own Patents?, Christopher J. Morten, Barry Datlof, Amy Kapczynski, Donna Meuth, Zain Rizvi

Faculty Scholarship

On March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue — Volume 11, Issue 1 — captures that event.

The following article represents the second of four panels. This panel asked, “Should the U.S. government actively assert its own patents?” The panel was moderated by Christopher Morten, Deputy Director of NYU Law’s Technology Law & Policy Clinic. The panelists included Barry Datlof, Chief of Business Development and Commercialization in the Office of Medical …

Extending Postpartum Medicaid: State And Federal Policy Options During And After Covid-19, Jamie R. Daw, Emily Eckert, Heidi Allen, Kristen Underhill

Faculty Scholarship

The United States is facing a maternal health crisis with rising rates of maternal mortality and morbidity and stark disparities in maternal outcomes by race and socioeconomic status. Among the efforts to address this issue, one policy proposal is gaining particular traction: extending the period of Medicaid eligibility for pregnant women beyond 60 days after childbirth. The authors examine the legislative and regulatory pathways most readily available for extending postpartum Medicaid, including their relative political, economic, and public health trade-offs. They also review the state and federal policy activity to date and discuss the impact of the COVID-19 pandemic on …

The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey

Faculty Scholarship

Mental health issues are all too common consequences of conflict and atrocity crimes, often causing upwards of one-quarter of the post-conflict, post-atrocity population to suffer from physical and mental sequelae that linger long after weapons have been silenced. After more than six years of ongoing conflict, Yemen’s already weak health care system is on the brink of collapse, and population resilience has been severely stressed by indiscriminate attacks, airstrikes, torture, food insecurity, unemployment, cholera, and now the COVID-19 pandemic. This paper examines Yemen’s responsibilities regarding the right to mental health and details the few actions the government has taken to …

Vaccination Equity By Design, Olatunde C.A. Johnson, Kristen Underhill

Faculty Scholarship

This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …

Covid-19 And Prisoners’ Rights, Gregory Bernstein, Stephanie Guzman, Maggie Hadley, Rosalyn M. Huff, Alison Hung, Anita N.H. Yandle, Alexis Hoag, Bernard E. Harcourt

Faculty Scholarship

As COVID-19 continues to spread rapidly across the country, the crowded and unsanitary conditions in prisons, jails, juvenile detention, and immigration detention centers leave incarcerated individuals especially vulnerable. This chapter will discuss potential avenues for detained persons and their lawyers seeking to use the legal system to obtain relief, including potential release, during this extraordinary, unprecedented crisis.

Privacy And Pandemics, Clarisa Long

Faculty Scholarship

The beginning of 2020 marked an unexpected turn for the world, the global pandemic of COVID-19 has affected every aspect of life. It has also created an unprecedented opportunity for governments to justify the expansion of their surveillance and collection of data. The foregoing essay, which was first published in Faculty Publications at Scholarship Archive of the Columbia Law School focuses on two types of data collection – governmental mass collection of nonanonymized location data and state-collected nonanonymized data on people's health and immunity status. Several countries have applied one or both practices and it is relevant to look into …

Driver For Contactless Payments, Ronald J. Mann

Faculty Scholarship

As a consumer, my primary experience with cash before the virus was standing in checkout lines observing the sluggish pace of cash transactions in front of me. Like so many things in our lives, the advent of the virus has changed the situation markedly. From the earliest days of infection, it has been far more unsettling to observe cash transactions knowing that the virus persists on paper and metal surfaces for days.

The dynamic that has driven the choices merchants offer in face-to-face retail transactions will change as well. Driven by the private exigencies of the retail environment, the last …

Public Health Law Tools: A Brief Guide, Kristen Underhill

Faculty Scholarship

The COVID-19 pandemic offers a threat with few precedents in modern times and tests the tools of modern surveillance and public health law. The goal of this chapter is to provide a brief overview of the types of measures that state and federal governments can invoke to treat and prevent the spread of infectious disease. The following sections will provide an orientation to domestic public health law followed by the types of measures available to state and federal public health authorities.

Although this chapter does not consider international institutions, treaties, or norms that affect public health, these are also essential …

Who’S Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crises, Christopher J. Morten, Charles Duan

Faculty Scholarship

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict – indeed, have already begun to conflict – with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point …

Linked Fate: Justice And The Criminal Legal System During The Covid-19 Pandemic, Susan P. Sturm, Faiz Pirani, Hyun Kim, Natalie Behr, Zachary D. Hardwick

Faculty Scholarship

The concept of “linked fate” has taken on new meaning in the face of the COVID-19 pandemic. People all over the world – from every walk of life, spanning class, race, gender, and nationality – face a potentially deadly threat requiring cooperation and sacrifice. The plight of the most vulnerable among us affects the capacity of the larger community to cope with, recover, and learn from COVID-19’s devastating impact. COVID-19 makes visible and urgent the need to embrace our linked fate, “develop a sense of commonality and shared circumstances,” and unstick dysfunctional and inequitable political and legal systems.

Nowhere is …

Covid-19 And The Law: Elections, Richard Briffault

Faculty Scholarship

With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.

The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

Purchasing Health? The Promise And Limits Of Public Health Insurance, Kristen Underhill

Faculty Scholarship

The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and people in need of long-term care. Since 2014, the pendulum of Medicaid policy has swung from an unprecedented expansion of coverage under the Affordable Care Act (ACA), toward more recent federal regulations and state policy innovations that are instead predicted to limit uptake of benefits. …

Bearing Faith: The Limits Of Catholic Health Care For Women Of Color, Kira Shepherd, Elizabeth Reiner Platt, Katherine M. Franke, Elizabeth Boylan

Faculty Scholarship

This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs. Women of color’s disproportionate reliance on Catholic hospitals in these states increases their exposure to restrictions that place religious ideology over best medical practices.

To determine whether women of color disproportionately give birth at hospitals operating under the ERDs, we compared the percentage of births to women of color at Catholic and non-Catholic hospitals. In over half of the states we studied (19 out of 33 states plus …

Women Of Color And Health: Issues And Solutions, June Cross, Nia Weeks, Kristen Underhill, Chloe Bootstaylor

Faculty Scholarship

Chloe Bootstaylor: Welcome to our second panel. This panel focuses on women of color in health, issues, and solutions. The session is inspired by Professor June Cross of the Columbia School of Journalism and her recent film, Wilhemina’s War, which follows the story of Wilhemina Dixon and depicts the obstacles that Americans with HIV/AIDS face in accessing not only adequate healthcare but also financial, infrastructural, and social support in their communities.

This panel will consist of Professor Underhill and Nia Weeks. June Cross will join us a little later on. We will start with a clip from her film, …

Closets, Standards, Abortion: A Reply To Professor Pozen, Carol Sanger

Faculty Scholarship

I am grateful for David Pozen's thoughtful observations regarding About Abortion. They have sharpened my understanding of how to think about the problem of abortion – or more accurately, about how abortion is kept problematic – as a matter of law and of social practice. I invoke the word "problematic" to describe the cultural setting in which abortion sits: although the procedure is legal, common, and safe, it is often treated as though it were not legal, or barely so; not common, except perhaps for women and girls who have nothing to do with you; and not at all …

The Abortion Closet (With A Note On Rules And Standards), David E. Pozen

Faculty Scholarship

An enormous amount of information and insight is packed into Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

Police Contact And Mental Health, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Although an effective police presence is widely regarded as critical to public safety, less is known about the effects of police practices on mental health and community wellbeing. Adolescents and young adults in specific neighborhoods of urban areas are likely to experience assertive contemporary police practices. This study goes beyond research on policing effects on legal socialization to assess the effects of police contact on the mental health of those stopped by the police. We collected and analyzed data in a two wave survey of young men in New York City (N=717) clustered in the neighborhoods with the highest rates …

Law In The Shadow Of Violence: Can Law Help To Improve Doctor-Patient Trust In China?, Benjamin L. Liebman

Faculty Scholarship

Can law help to address the lack of trust in doctor-patient relationships in China? This essay examines the role that law, on the books and in practice, has played in the rise and resolution of patient-doctor disputes and conflict in China. Law has generally played a secondary role in medical disputes: most patient claims never make it to court, and there is little evidence that negotiated outcomes are influenced by legal standards. Yet a legal framework weighted in favor of hospitals and doctors almost certainly exacerbated doctor-patient conflict in the 2000s. Patients facing legal procedures and rules that appeared to …

Firearm Legislation And Firearm Mortality In The Usa: A Cross-Sectional, State-Level Study, Bindu Kalesan, Matthew Mobily, Olivia Keiser, Jeffrey Fagan

Faculty Scholarship

In an effort to reduce firearm mortality rates in the USA, US states have enacted a range of firearm laws to either strengthen or deregulate the existing main federal gun control law, the Brady Law. We set out to determine the independent association of different firearm laws with overall firearm mortality, homicide firearm mortality, and suicide firearm mortality across all US states. We also projected the potential reduction of firearm mortality if the three most strongly associated firearm laws were enacted at the federal level.

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Agencies, Polarization, And The States, Gillian E. Metzger

Faculty Scholarship

Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have …

Children's Health In A Legal Framework, Elizabeth S. Scott, Clare Huntington

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …