Law Commons^™

Thinly Rooted: Dobbs, Tradition, And Reproductive Justice, Darren L. Hutchinson

Faculty Articles

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and …

Climate Change And The Law Of National Security Adaptation, Mark P. Nevitt

Faculty Articles

The Department of Defense (DoD) is the largest employer in the world, owns and operates an enormous global real estate portfolio, and emits more Greenhouse Gases (GHGs) than many nations. Entrusted with the national security, the DoD is now threatened by a new enemy—climate change. Climate change imperils national security infrastructure while undermining the military’s capacity to respond to climate-driven disasters at home and abroad. However, legal scholarship has yet to address what I call “the law of national security adaptation” and related questions. For example, how do environmental and climate change laws apply to the U.S. military? What laws …

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Pandemics, Paid Sick Leaves, And Tax Institutions, Alex Zhang

Faculty Articles

The COVID-19 pandemic is currently ravaging the world, and the United States has been largely unsuccessful at containing the coronavirus. One long-standing policy failure stands out as having exacerbated the pandemic in our country: the lack of a national mandate of paid sick leaves, without which workers face financial and workplace-cultural pressures to attend work while sick, thus spreading the virus to their fellow employees and the public at large.

This Article provides the blueprint for a national, subsidized mandate of paid sick leaves and two additional insights about our tax institutions as mechanisms of effectuating broader societal goals. It …

Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Y. Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown

Faculty Articles

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped “iron triangle” ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures — individualism, fiscal fragmentation, privatization, and federalism — that distort and diffuse any reach toward social justice. The profound racial disparities and …

Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo

Faculty Articles

In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation …

Against The "Safety Net", Matthew B. Lawrence

Faculty Articles

Then-Representative Jack Kemp and President Ronald Reagan originated the “safety net” conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Faculty Articles

One thing we have seen today that we talk about in health law all the time is how the policy, the laws and institutions up at the 10,000 foot level, can so dramatically influence the personal, people’s lived experiences. Our speakers today have done a really great job of drawing out abstract institutional questions and also showing us how those questions have influenced the lives of real people in often tragic ways. Another thing we have seen that we talk about in administrative law all the time is the importance of expertise, especially given how hard it is to trace …

Domestic Military Operations And The Coronavirus Pandemic, Mark P. Nevitt

Faculty Articles

In response to the novel coronavirus crisis, we are witnessing one of the largest domestic military operations in American history. This article proceeds in three parts. Part I considers the emergency authorities invoked to address the coronavirus, including the Public Health Service Act (PHSA), National Emergencies Act (NEA), and Stafford Act. Part II deals with the laws, regulations, and policies governing the military’s role as a law enforcer— including restrictions on the military’s role to quell civilian disturbances. I also briefly discuss martial law, a rarely invoked but powerful authority held at the federal, state, and local levels. Part III …

Deputizing Family: Loved Ones As A Regulatory Tool In The “Drug War” And Beyond, Matthew B. Lawrence

Faculty Articles

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as …

The Morality Of Compulsory Licensing As An Access To Medicines Tool, Margo A. Bagley

Faculty Articles

This Article contemplates the validity of theft rhetoric in relation to the right of countries to grant compulsory licenses from an unconventional perspective; that of biblical teachings on what it means to steal.

Part I describes the use of theft rhetoric in relation to IP infringement broadly and drug-patent compulsory licenses in particular.

Part II challenges the contention, suggested by theft rhetoric, that compulsory licenses are morally wrong as a form of stealing, by considering the meaning of theft in the context of its Judeo-Christian origins.

Part III considers the cogency of the accusation that the issuance of compulsory licenses …

Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd

Faculty Articles

A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases.

I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation …

The Health Insurance Debate In Canada: Lessons For The United States?, Mary Anne Bobinski

Faculty Articles

This Essay begins with an intentionally ambiguous title. Are comparisons to Canada relevant and useful for policy-makers in the United States and, if so, what lessons can we learn? Part II of this Essay highlights some of the risks and benefits of cross-border comparisons between the United States and Canada. In Part III, I analyze some of the key data points often cited in comparing the two health care systems. Part IV explores the current Canadian debate about private health insurance. Finally, in Part V, I focus on the lessons from Canada for the health insurance debate in the United …

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

Women, Poverty, Access To Health Care, And The Perils Of Symbolic Reform, Mary Anne Bobinski, Phyllis Griffin Epps

Faculty Articles

This article looks at health care through gendered eyes. We sift though available data on access to health care, health status, and health treatments to determine whether men and women experience health care differently in the United States. While we do not doubt that overt gender-based discrimination occasionally occurs in health care, this article focuses on the importance of unintended consequences and unconscious bias. We also explore the impact of symbolism about women's roles on the process of health care reform. The results have important implications for policy makers, advocates, and health care providers.

The United States has a large …

Risk And Rationality: The Centers For Disease Control And The Regulation Of Hiv-Infected Health Care Workers, Mary Anne Bobinski

Faculty Articles

The publicity surrounding the Bergalis case has created a new and powerful fear for some-the fear of contracting a fatal disease while obtaining medical or dental care. Following Bergalis' congressional testimony, Congress passed a bill requiring states to regulate HIV-infected health care workers (HCWs). Responding to constituents' fears, state legislatures had already been debating a wide range of bills designed to confront the risk of HIV transmission in health care settings. Private actors, such as hospitals and insurers, feared litigation or loss of business if the public perceived them to be ignoring the problem of HIV infection among HCWs. As …