Health Law and Policy Commons^™

Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran

Catholic University Law Review

During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens.

Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

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

Dickinson Law Review (2017-Present)

No abstract provided.

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

All Faculty Scholarship

Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …

Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

Scholarly Works

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail R. Moncrieff

Law Faculty Articles and Essays

Because tort law and healthcare regulation are traditional state functions and because medical, legal, and insurance practices are localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. This conventional view fails to consider the impact that federal healthcare programs have on the states' incentives to regulate. As a result of federal financing, each state externalizes some of the costs of its malpractice policy onto the federal government. The federal government therefore needs to take charge of medical malpractice in order to fix the spillover problem created by existing federal healthcare programs.

Importantly, …

Do Citizens Care About Federalism? An Experimental Test, Robert Mikos, Cindy D. Kam

Vanderbilt Law School Faculty Publications

The ongoing debate over the political safeguards of federalism has essentially ignored the role that citizens might play in restraining federal power. Scholars have assumed that citizens care only about policy outcomes and will invariably support congressional legislation that satisfies their substantive policy preferences, no matter the cost to state powers. Scholars thus typically turn to institutions-the courts or institutional features of the political process-to cabin congressional authority. We argue that ignoring citizens is a mistake. We propose a new theory of the political safeguards of federalism in which citizens help to safeguard state authority. We also test our theory …

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

Scholarly Works

This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

Fair Labor Standards Act And Sovereign Immunity: Unlocking The Courthouse Door For Texas State Employees., Melinda Herrera

St. Mary's Law Journal

Unless Texas expressly waives its Eleventh Amendment sovereign immunity, its state employees will not have similar legal recourse and protection as those available to private employees. As in many other states, a party may not sue the State of Texas without its consent. Thus, in the absence of constitutional or statutory provisions to the contrary, a state may claim sovereign immunity against any suit brought by a private party in both federal and state court. As a result, the Eleventh Amendment effectively precludes private individuals from suing a state in both federal and state court for violating a federal statute …

Splitting The Atom Or Splitting Hairs - The Hate Crimes Prevention Act Of 1999 Note., Andrew M. Gilbert, Eric D. Marchand

St. Mary's Law Journal

Problems of bias-motivated violence plague our nation and threaten to erase the progress made during the civil rights era. Recent statistical surveys conducted by the Federal Bureau of Investigation (FBI) indicate the number of hate crimes has generally increased over the past few years. In 1996, over 11,000 individuals were victims of hate crimes—five percent more than reported the previous year. Hate crimes are not only injurious to the individual victim, but also fracture surrounding communities and create disharmony among citizens. As a result, some states implemented legislation in the 1980s to deter hate-motived crimes and a few states have …

Federalism Revisited: The Supreme Court Resurrects The Notion Of Enumerated Powers By Limiting Congress's Attempt To Federalize Crime Comment., Larry E. Gee

St. Mary's Law Journal

This Comment argues the federal system must be preserved and the Supreme Court should build upon the interpretation of the Commerce Clause in United States v. Lopez to reinstate the Framers’ vision of federalism. The social justifications for the Court’s expansive construction of the Commerce Clause during the past sixty years no longer existed to justify the Gun-Free School Zones Act of 1990. Part II of this Comment traces the background of Commerce Clause jurisprudence, focusing on social justifications for traditional rubber stamping of Congress’s broad exercises of power. Part III reviews the Fifth Circuit’s reasoning in deeming the Gun-Free …

Expert Witness Fees In Federal Diversity Cases., Wade P. Webster

St. Mary's Law Journal

Even with the increasing complexity of litigation and the increased utilization of expert witnesses to provide expensive evidence on narrow scientific and technical issues, Congress still limits compensation of expert witnesses to only forty dollars per day, the same rate as ordinary fact witnesses. The justification for the low rate is that the witness fee statute was not intended by Congress to compensate witnesses fully for their lost time and income. Presumably this same reasoning also applies to expert witnesses. The problem with this reasoning, unlike law witnesses who may be compelled by subpoena, individual litigants must pay the fees …