Law Commons^™

Why Healthy Behavior Is The Hard Choice, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Our society is structured to encourage unhealthy diets and physically inactive lifestyles, which are key risk factors for chronic diseases including diabetes, heart diseases, and cancers. We are bombarded with advertisements for hyperprocessed foods laden with saturated fat, salt, sugar, and refined carbohydrates, “low-fat” foods often contain high amounts of sugar and salt, and parks and recreation spaces are often inaccessible or unsafe.

Four simple ideas - taxes on unhealthy products, product reformulation, improving the informational environment, and increasing healthy food accessibility - could make healthy behaviors the “default” choice for most consumers. First, taxes on unhealthy products, such as …

Hobby Lobby, Birth Control And Our Ongoing Cultural Wars: Pleasure And Desire In The Crossfires, Robin West

Georgetown Law Faculty Publications and Other Works

Both sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.

This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal …

The Reverberating Risk Of Long-Term Care, Allison K. Hoffman

All Faculty Scholarship

The Fiftieth Anniversary of Medicare and Medicaid offers an opportunity to reflect on how American social policy has conceived of the problem of long-term care. In this essay, based on a longer forthcoming article, I argue that current policies adopt too narrow a conception of long-term care risk, by focusing on the effect of serious illness and disability on people who need care and not on the friends and family who often provide it. I propose a more complete view of long-term care risk that acknowledges how illness and disability reverberates through communities, posing insecurity for people beyond those in …

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

Scholarly Works

Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

Marijuana Localism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The states have wrested control of marijuana policy from the federal government, but they risk losing some of their newfound power to another player: local governments. Hundreds of local communities are now seeking to establish their own marijuana policies, from legalization to prohibition and a variety of idiosyncratic regulatory schemes in between. These local efforts raise one of the most important and unresolved questions surrounding marijuana law and policy: What authority, if any, should states give local governments to regulate marijuana? This Article provides some guidance on this question. It starts by identifying two competing considerations that help determine whether …

Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman

Articles

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with. This article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, …

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

Encouraging Maternal Sacrifice: How Regulations Governing The Consumption Of Pharmaceuticals During Pregnancy Prioritize Fetal Safety Over Maternal Health And Autonomy, Greer Donley

Articles

Pregnant women are routinely faced with the stressful decision of whether to consume needed medications during their pregnancies. Because the risks associated with pharmaceutical drug consumption during pregnancy are largely unknown, pregnant women both inadvertently consume dangerous medications and avoid needed drugs. Both outcomes are harmful to pregnant women and their fetuses. This unparalleled lack of drug safety information is a result of ill-conceived, paternalistic regulations in two areas of the law: regulations governing ethical research in human subjects and regulations that dictate the required labels on drugs. The former categorizes pregnant women as “vulnerable” and thus precludes them from …

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

Articles

This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …

Unearthing The Lost History Of Seminole Rock, Amy J. Wildermuth, Sanne H. Knudsen

Articles

In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are. Recently members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. We agree. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article — the first historical explication of Seminole …

Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard

UF Law Faculty Publications

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are …

Responding To Requests For Assisted Reproductive Technology Intervention Involving Women Who Cannot Give Consent, Jennifer S. Bard, Lindsay Penrose

UF Law Faculty Publications

One of the plots of the Canadian science fiction thriller Orphan Black involves a scheme to create dozens of siblings by harvesting the eggs of one woman, fertilizing them with the sperm of a single man, and implanting them for gestation in dozens of apparently willing surrogates. The casualness of the procedure speaks to how comfortable we have all become with reproduction by technology. Yet there are still aspects of this process that remain outside the normative boundaries of most of our worldviews. This article considers recent advances in assisted reproductive technology (ART) that can result in a viable, fertilized …

The Normative Authority Of The World Health Organization, Lawrence O. Gostin, Devi Sridhar, Daniel Hougendobler

Georgetown Law Faculty Publications and Other Works

The World Health Organization (WHO) was born after the devastation of World War II, as a normative agency endowed with unprecedented constitutional powers. But even as it has achieved stunning successes, such as the eradication of smallpox, it has failed to live up to the exalted expectations of the postwar health and human rights movement e exemplified most recently by its inadequate response to the Ebola epidemic. Our aim is to offer innovative ideas for restoring the Organization to its leadership position by exercising its normative authority, even as it faces a crowded and often chaotic global health architecture. Before …

Sexual Assaults Among University Students: Prevention, Support, And Justice, Rebecca B. Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Sexual assault is common among college-aged women (18 to 25 years), with 1 in 5 reporting having experienced these crimes during their college years. Acute and long-term consequences of sexual assault may include physical trauma, sexually transmitted infections, posttraumatic stress disorder, depression, and substance abuse. Survivors have the option of reporting assaults to the university or to the police, but the goals of these 2 systems—and women’s experiences with them—can be quite different. The criminal justice system’s principal aim is to adjudicate guilt, but the university has the broader purpose of fostering a safe learning environment.

This article explores how …

Indonesia Has It Backward: It's Not E-Cigarettes That's The Problem But Smoking, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Indonesia has announced it will be banning e-cigarettes. But that would do nothing to reduce smoking, which should be the main target of those interested in reducing tobacco use deaths and harms. Rather than ban e-cigarettes, it makes more sense to regulate them effectively so that they can serve as a useful anti-smoking tool. The availability of e-cigarettes to smokers can also make much more aggressive anti-smoking strategies more practically and politically viable-–perhaps even paving the way for banning cigarettes, instead.

An O'Neill Institute Briefing Paper: Ebola, The World Health Organization, And Beyond: Toward A Framework For Global Health Security, Lawrence O. Gostin, Eric A. Friedman, Daniel Hougendobler

Georgetown Law Faculty Publications and Other Works

The West African Ebola epidemic has demonstrated that the world remains ill-prepared to respond to infectious disease outbreaks. A host of institutions are now reviewing what went wrong, and new institutions are being considered, including an African Centers for Disease Control and Prevention and World Bank-initiated Pandemic Emergency Facility. The World Health Organization itself failed in one of its core functions by allowing a preventable infectious disease to spiral out of control in the world’s poorest region. The 68th World Health Assembly (WHA), held in May 2015, provided an opportunity for the Organization to reflect on what went wrong and …

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

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 …

Will Uncooperative Federalism Survive Nfib?, Abigail Moncrieff, Jonathan Dinerstein

Faculty Scholarship

In October Term 2012, the Supreme Court decided two cases that are fundamentally at odds: NFIB v. Sebelius and Douglas v. Independent Living Center of Southern California. In NFIB, the Court held that the federal government, at least under some circumstances, may not use the threat of reduced funding in cooperative federalism programs to require states to comply with federal statutory requirements. In Douglas, however, the Court indicated that private litigants should sue federal agencies under the Administrative Procedure Act if those agencies refuse to enforce federal statutory requirements against the states. The problem is that the withdrawal of funding …

Should Patient Responsibility For Costs Change The Doctor-Patient Relationship?, Christopher Robertson

Faculty Scholarship

Copays, deductibles, coinsurance, and reference prices all now expose patients to increasingly larger shares of the costs of health care. Extant research on cost sharing has primarily focused on its impact on patients, their health care spending, and their health outcomes. Scholars have paid much less attention to the question of how patient exposure to health care costs may impact physicians and their relationships with their patients. This Essay is given on the occasion of a symposium motivated by two recent books by David Schenck, Larry Churchill, and Joseph Fanning that highlight the relational aspects of health care ethics. Accordingly, …

The Impact Of Law On The Right To Water And Adding Normative Change To The Global Agenda, Michael Ulrich

Faculty Scholarship

A resolution was passed at the United Nations Water Conference in 1977 to achieve universal access to sufficient water by 1990. This bar was lowered significantly as part of the Millennium Development Goals (MDGs). However, as the MDGs come to an end this year, even this reduced benchmark will not be reached. Water is inescapably intertwined with every other MDG, as well as the ability to exercise any human right. Consequently, the failure to achieve this goal implores an exploration of its causes. As the global community embarks on setting a new post-MDG agenda, one currently overlooked aspect is the …

The Impact Of Disability: A Comparative Approach To Medical Resource Allocation In Public Health Emergencies, Katie Hanschke, Leslie E. Wolf, Wendy F. Hensel

Faculty Publications By Year

It is a matter of time before the next widespread pandemic or natural disaster hits the United States (U.S.). The international response to the 2009 H1N1 influenza stands as a cautionary tale about how prepared the world is for such an emergency. Although the pandemic fortunately proved to be less severe than initially anticipated, it nevertheless resulted in shortages of medical equipment, overburdened hospitals, and preventable patient deaths, particularly among young people.

A pandemic will inevitably lead to difficult decisions about the allocation of medical resources, such as who will have priority access to ventilators and critical care beds when …

Toward Coherent Federal Oversight Of Medicine, Patricia J. Zettler

Faculty Publications By Year

The conventional wisdom in U.S. health law and policy holds that states regulate medical practice – the activities of physicians and other health care professionals – while the federal government regulates medical products. But relying on states as the principal regulators of medical practice has, at times, driven law and policy in directions that are problematic from a public health perspective, as demonstrated by a deadly 2012 outbreak of fungal meningitis that was linked to a state-regulated practice known as drug compounding. This Article argues that the federalism concerns underlying the conventional wisdom are misplaced. It demonstrates that, contrary to …