Law Commons^™

Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick

Michigan Law Review First Impressions

The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.

Unintended Consequences: The Primacy Of Public Trust In Vaccination, Jason L. Schwartz

Michigan Law Review First Impressions

The increasing availability of personal belief exemptions from state vaccination requirements is a growing concern among proponents of vaccination. Holding parents of non-vaccinated children liable to those they infect is among the responses proposed to maintain high vaccination rates. Even if motivated by a sincere desire to maximize the benefits of vaccination throughout society, such a step would be inadvisable, further entrenching opponents of vaccination and adding to the atmosphere of confusion and unnecessary alarm that has become increasingly common among parents of children for whom vaccination is recommended.

Challenging Personal Belief Immunization Exemptions: Considering Legal Responses, Alexandra Stewart

Michigan Law Review First Impressions

Public health agencies and citizens should employ legal approaches to hold parents accountable for refusing to vaccinate their children. The judiciary would craft an effective response to defeat the threat posed by these parents. Public-nuisance law may offer a legal mechanism to hold vaccine objectors liable for their actions.

Giving In To Baby Markets: Regulation Without Prohibition, Sonia M. Suter

Michigan Journal of Gender & Law

The commodification of reproductive material evokes different responses. Some argue that the sale of reproductive material should be prohibited. Others argue in favor of unfettered baby markets on principle or to achieve broad-scale access to reproductive technologies. In this Article, the author responds to the emergence of baby markets with great skepticism, but reluctant acceptance. Drawing on a relational conception of autonomy and self-definition, she argues that commodification of reproductive material is intrinsically harmful. Moreover, such commodification poses a number of consequential harms. Nevertheless, in spite of these concerns, the author "gives in" to baby markets, which is to say …

Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman

Michigan Journal of Gender & Law

In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in …

Taking Aim At The Virginia Triggerman Rule: A Commentary On House Bill 2358, Anisa Mohanty

Anisa Mohanty

No abstract provided.

Acknowledging The 4th Strike, M. Dylan Mcclelland

M. Dylan McClelland

A provacative look at the right to inmate health care in an era of economic scarcity. Does a civilized society really care for the guilty before its innocent?

Gender Outlaws Before The Law: The Courts Of The Borderlands, Aeyal M. Gross

Aeyal M. Gross

This Article considers four trials held in the United States, United Kingdom, and Israel, in which gender outlaws were accused and convicted in a criminal court for fraudulent gender presentations. These trials raise questions at a number of junctures that touch on the regulation and politics of sex, gender, and sexuality. I argue that these cases manifest not only the unresolved tension between sexual and gender identities, but also the internal conflicts within the identities themselves, as well as the difficulty of maintaining boundaries amongst them. Furthermore, I argue that, contrary to the rhetoric used by the various courts, the …

International Harmonization Of Regulation Of Nanomedicine, Gary E. Marchant, Douglas J. Sylvester, Kenneth W. Abbott, Tara Lynn Danforth

Gary E. Marchant

Nanomedicine holds enormous promise for the improved prevention, detection and treatment of disease. Yet, at the same time, countervailing concerns about the potential safety risks of nanotechnologies generally, and nanomedical products specifically, threaten to derail or at least delay the introduction and commercial viability of many nanomedicine applications. All around the globe, national governments are struggling with balancing these competing benefits and risks of nanotechnology in the medical and other sectors. It is becoming increasingly clear that reasonable, effective and predictable regulatory structures will be critical to the successful implementation of nanotechnology. The question examined in this paper is whether …

International Harmonization Of Regulation Of Nanomedicine, Gary E. Marchant, Douglas J. Sylvester, Kenneth W. Abbott, Tara Lynn Danforth

Gary E. Marchant

Nanomedicine holds enormous promise for the improved prevention, detection and treatment of disease. Yet, at the same time, countervailing concerns about the potential safety risks of nanotechnologies generally, and nanomedical products specifically, threaten to derail or at least delay the introduction and commercial viability of many nanomedicine applications. All around the globe, national governments are struggling with balancing these competing benefits and risks of nanotechnology in the medical and other sectors. It is becoming increasingly clear that reasonable, effective and predictable regulatory structures will be critical to the successful implementation of nanotechnology. The question examined in this paper is whether …

An Empirical Examination Of The Factors Associated With The Commutation Of State Death Row Prisoners’ Sentences Between 1986 And 2005, John D. Kraemer

John D Kraemer

Commutation is usually a death row prisoner’s last hope of evading his or her capital sentence. However, unlike many other stages of the death penalty process, little research focuses on the factors that affect decisions to commute or allow a death sentence to go forward, and that which has been conducted utilizes data which is now nearly a decade old. This paper seeks to examine personal and demographic factors associated with commutation decisions and to resolve incon- sistent findings in the prior research. Using the statistical method of multiple logistic regression, this paper finds statistically significant disparities in the odds …

Screening Of Prisoners For Hiv: Public Health, Legal, And Ethical Implications, John D. Kraemer

John D Kraemer

Inmates are disproportionately impacted by HIV/AIDS in the United States. As a result, correctional health systems have often screened prisoners -- either at entry or while incarcerated -- for HIV. This paper assesses the likely public health impact of such programs and concludes that they can be beneficial so long as screening programs are linked with adequate prevention and treatment. It also assesses the conditions under which screening programs comply with or violate United States constitutional law and ethical norms.

Saving The Leftovers: Models For Banking Cord Blood Stem Cells, Kimberly J. Cogdell

Kimberly J Cogdell

This article draws an interesting comparison between material placed on the curb to be collected as garbage and the material (cord blood stem cells) removed during childbirth to be discarded by the hospital. The comparison is made based on the California v. Greenwood decision and deals with expectations of privacy in materials placed on the curbside as trash; search and seizure of materials obtained from a warrantless search and whether the use of this material violated the Fourth Amendment.

The use of embryonic stem cells is a highly publicized, politically-charged topic which implicates many ethical, legal and moral issues. But …

Price And Pretense In The Baby Market, Kimberly D. Krawiec

Kimberly D. Krawiec

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against “baby selling” – typically defined as a prohibition against the …

I'M Interested In Health Law - Now Where Can I Get A Job?, Jennifer Bard

Jennifer Bard

Health care is a trillion-dollar industry that has grown exponentially over the past ten years with very little sign of slowing. The demand of legal services has tracked the growth of the industry. As a result, individuals in the health care field are increasingly thinking of expanding their career opportunities by getting law degrees and students already enrolled in law schools are interested in pursuing opportunities within health law. This article is intended to serve as a guide to both groups about the wide variety of job opportunities for lawyers within health care, where to find these jobs and how …

Three Ways Of Looking At A Health Law And Literature Class, Jennifer Bard

Jennifer Bard

The authors of this Article participated in a panel at the American Society of Law, Ethics & Medicine Conference in 2008 that discussed the use of literary materials in law school to teach medical ethics (and related matters) in a law school setting. Each author comes at the topic from a different perspective based on his or her own experience and background. This Article and the panel on which it was based reflect views on how literature can play a valuable role in helping law students, as well as medical students, understand important legal and ethical issues and concepts in …

Child Welfare And Future Persons, Carter Dillard

Carter Dillard

While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a …

Acknowledging The 4th Strike, M. Dylan Mcclelland

M. Dylan McClelland

A provacative look at the right to inmate health care in an era of economic scarcity. Does a civilized society really care for the guilty before its innocent?

Prosecuting Doctors For Trusting Patients, Deborah Hellman

Faculty Scholarship

In an escalating phase of our country’s war on drugs, doctors treating patients in pain are being prosecuted for drug trafficking under the Controlled Substances Act. While doctors surely can be guilty of drug trafficking when they sell drugs for money, lately some doctors have been prosecuted for violations of a statute that requires knowingly distributing or dispensing controlled substances in an unauthorized manner for simply being willfully blind to the fact that their patients were reselling the drugs. While willful blindness may be an apt substitute for knowledge in the traditional drug courier scenario, doctors in these cases are …

Physicians Who Break The Law, Diane E. Hoffmann

Faculty Scholarship

This paper takes as its starting point a recent article by Prof. Sandra Johnson, Regulating Physician Behavior: Taking Doctors “Bad Law” Claims Seriously. In the article, Johnson focuses on doctors who comply with the law despite their belief that the law is “bad”, i.e., causes them to behave in ways that are harmful to their patients. In Physicians Who Break the Law, I explore cases where physicians break the law claiming that it is “bad”. In this exploration, I focus on two areas of physicians’ lawbreaking: (1) violations of business-related laws, in particular, insurance fraud; and (2) violations of laws …

A Circumspect Look At Problem-Solving Courts, Richard C. Boldt

Faculty Scholarship

No abstract provided.

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Faculty Scholarship

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?

This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

The Costs Of Multiple Gestation Pregnancies In Assisted Reproduction, Urska Velikonja

Faculty Scholarship

The United States, unlike most developed countries, does not regulate its fertility industry. Rather, it vests control over the industry to professional organizations and to market forces. While lack of regulation has produced a vibrant market for fertility services, it has also produced an undesirable consequence: a high rate of multiple gestation pregnancies, including twin pregnancies. This Article summarizes the data on the medical, psychological, and financial costs associated with multiple pregnancies to the parents, the children, and American society. It suggests that the current U.S. regulatory regime has not only failed to address these costs as they surfaced but …

Privacy And Confidentiality In The Age Of E-Medicine, Keith A. Bauer

Journal of Health Care Law and Policy

No abstract provided.

The Ethics Of Health Care Reform: Unintended Consequences Of Payment Schemes And Regulatory Mandates, Rebecca D. Elon

Journal of Health Care Law and Policy

No abstract provided.

Punishing Pharmaceutical Companies For Unlawful Promotion Of Approved Drugs: Why The False Claims Act Is The Wrong Rx, Vicki W. Girard

Journal of Health Care Law and Policy

No abstract provided.

Childhood Obesity: The Law's Response To The Surgeon General's Call To Action To Prevent And Decrease Overweight And Obesity, Leah Loeb

Journal of Health Care Law and Policy

No abstract provided.

Law & Health Care Newsletter, V. 16, No. 2, Spring 2009

Law & Health Care Newsletter

No abstract provided.

Medical Malpractice Reform: A Silver Bullet For The Health Care Crisis?, Ian Barney

Public Interest Law Reporter

No abstract provided.

Morality Versus Vital Healthcare: The Debate Over Bush's Health And Human Services' Midnight Regulation, Lesley Shermeta

Public Interest Law Reporter

No abstract provided.