Science and Technology Law Commons^™

How Bodily Autonomy Can Fail Against Vaccination Mandates; The Few Vs. The Many, Jason Yadhram

Journal of Law and Health

Humans have been a communal species since inception and continue to be so to this day. Because of this, if even a small scale of a measured population becomes severely ill, the entire remaining population and surrounding area is thrown into absolute chaos. In fact, we have seen these circumstances throughout history and in the recent COVID-19 pandemic yet, some of us have forgotten that the only way this chaos can be curbed, is by enacting a mandatory vaccination policy. Since COVID-19 however, vaccination mandates have become an uneasy topic of conversation in the United States for essentially one main …

Our Changing Reality: The Metaverse And The Importance Of Privacy Regulations In The United States, Anushkay Raza

Global Business Law Review

This Note discusses the legal and pressing digital challenges that arise in connection with the growing use of virtual reality, and more specifically, the metaverse. As this digital realm becomes more integrated into our daily lives, the United States should look towards creating a federal privacy law that protects fundamental individual privacy rights. This Note argues that congress should emulate the European Union's privacy regulations, and further, balances the potential consequences and benefits of adapting European regulations within the United Sates. Finally, this Note provides drafting considerations of future lawyers who will not only be dealing with the rise of …

That Thing Ain't Human: The Artificiality Of "Human Authorship" And The Intelligence In Expanding Copyright Authorship To Fully-Autonomous Ai, Ernest Oleksy

Cleveland State Law Review

The U.S. Copyright Review Board (the "Board") decided that works entirely created by fully-autonomous artificial intelligence ("AI") are not entitled to copyright protections. The Board based its decision on a copyrightability requirement referred to as “human authorship.” However, the Copyright Act of 1976 (the "Act") never mentions a “human” requirement to copyright authorship, nor do most of the Board’s cited authorities. Denying authorship to intellectually-impressive and economically-valuable works under a poorly-established legal subelement is antithetical to copyright law’s history and to Congress’s constitutional mandate to “promote . . . [the] useful [a]rts . . . .” It leaves creators who …

Transcript: The Future Of Ivf Post Dobbs, Rebecca Feinberg

Journal of Law and Health

The following is a transcription from The Healthcare and Privacy Law Consequences Following Dobbs presented at Cleveland State University College of Law by The Journal of Law & Health on February 17, 2023. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

Defining Genetic Information Under Gina, Shane Padilla

Cleveland State Law Review

The Genetic Information Nondiscrimination Act (GINA) was enacted to prevent discrimination based on an employee’s genetic information. Although GINA undoubtedly provides employees protection from unjust genetic discrimination by employers, varying interpretations of what constitutes “genetic information” has raised legal uncertainties in how GINA is applied. Consequently, the genetic information of an employee’s family may be unduly placed at risk as a result of misinterpreting the statutory language and legislative intent of GINA. It is of the utmost importance that the definition of “genetic information” be construed with respect to the Act’s legislative history, which supports a broad interpretation and application …

Reconnecting The Patient: Why Telehealth Policy Solutions Must Consider The Deepening Digital Divide, Laura C. Hoffman

Journal of Law and Health

This Article attempts to untangle the complicated web of providing telehealth to those populations it is potentially capable of further alienating from access to healthcare including: 1) race/minority populations, 2) aging adults, 3) individuals with disabilities, 4) non-English speakers, 5) individuals living in rural areas, 6) socioeconomic class, and 7) children, in order to advance the argument that telehealth can be successful in providing healthcare access to these populations. Rather than suggesting that telehealth simply “cannot work” for these populations, instead this Article considers how telehealth can and must meet the needs of these individuals through technology, access, and policy …

Don't Tread On My Ip Rights: A Law And Economics Analysis Of "March-In Rights" Under The Bayh-Dole Act, Caitlin Grow

Cleveland State Law Review

The Bayh-Dole Act has been imperative to the development of the United States’ dynamic pharma-biotech sector. However, the use of march-in rights under the Bayh- Dole Act has remained controversial. On the one hand, there is the idea of market equilibrium with a need to secure health care for the public. Many believe march-in rights should be used to create this balance by regulating the pricing of drugs that were developed using federally funded research. On the other hand, some advocates recognize that the current relationship between public-sector institutions and business as the developers of basic research, and private-sector biotechnology …

Machine Learning-Based Medical Devices: The Fda’S Regulation, Requirements, And Restrictions, Charli Beam

Journal of Law and Health

The FDA should create functional regulations for the growing number of machine learning medical devices. The healthcare system is increasingly using these devices for diagnosis. Machine learning devices trained on biased data sets are susceptible to furthering certain types of bias and generating flawed outcomes. The FDA should require ML medical devices to include a label that describes the demographics of the tested population. If manufacturers fail to include this information, the FDA could determine the label false or misleading under §502 of the FD&C Act and stop sales of the device. After approval, the FDA should use §814.89(2) and …

Transcript: Presentation On Artificial Intelligence And Discrimination In Healthcare, Sharona Hoffman

Journal of Law and Health

The following is a transcription from The Digital Health and Technology Symposium presented at Cleveland-Marshall College of Law by The Journal of Law & Health on Friday, April 8, 2022. This transcript has been lightly edited for clarity.

Transcript: Presentation On Individual Autonomy In Ai Healthcare, Charlotte Tschider

Journal of Law and Health

The following is a transcription from The Digital Health and Technology Symposium presented at Cleveland-Marshall College of Law by The Journal of Law & Health on Friday, April 8, 2022. This transcript has been lightly edited for clarity.

Transcript: Presentation On Data Privacy Questions In The Digital Health World, Sara Gerke

Journal of Law and Health

The following is a transcription from The Digital Health and Technology Symposium presented at Cleveland-Marshall College of Law by The Journal of Law & Health on Friday, April 8, 2022. This transcript has been lightly edited for clarity.

Flattening The Curve While Protecting Our Right To Privacy: How The United States Can Implement The Digital Contract Tracing Efforts Used In East Asia, Evan Morris

Global Business Law Review

This paper looks at the digital contact tracing efforts implemented by other nations and assesses how similar measures could operate under enacted and proposed United States laws. Part I overviews the history of contact tracing and its effectiveness in prior disease outbreaks. Part II delves into the digital contact tracing efforts implemented by South Korea and Singapore. These summaries include: the digital contact tracing efforts taken, the laws that authorize these efforts, the public’s reception, and the overall effectiveness of the efforts. Part III overviews the digital contact tracing efforts in the United States, including proposed legislation aimed at user …

Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Laura C. Hoffman, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Megan S. Wright, Joseph J. Fins

Law Faculty Articles and Essays

The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the …

Reconnecting The Patient: Why Telehealth Policy Solutions Must Consider The Deepening Digital Divide, Laura C. Hoffman

Law Faculty Articles and Essays

This Article will attempt to untangle the complicated web of providing telehealth to those populations it is potentially capable of further alienating from access to healthcare including: 1) race/minority populations, 2) aging adults, 3) individuals with disabilities, 4) non-English speakers, 5) individuals living in rural areas, 6) socioeconomic class, and 7) children, in order to advance the argument that telehealth can be successful in providing healthcare access to these populations. Rather than suggesting that telehealth simply "cannot work" for these populations, instead consideration can and must meet these individuals through technology, access, and policy developments.

First, this Article will explain …

A Trip Through Employment Law: Protecting Therapeutic Psilocybin Users In The Workplace, Benjamin Sheppard

Journal of Law and Health

In 2020, Oregon voters legalized therapeutic psilocybin in response to a plethora of scientific studies showing symptom reduction for depression, anxiety, substance use disorders, opioid addictions, migraines, other mental illnesses, HIV/AIDS, and cancer. The legal rethinking regarding therapeutic psilocybin continues in both state legislatures and city councils. Yet, despite state and local legalization or decriminalization of therapeutic psilocybin it remains illegal under the federal Controlled Substances Act. This tension between local and federal law places therapeutic psilocybin users and their employers in a difficult position. Because all types of psilocybin use remain illegal under federal law, a zero-tolerance drug use …

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka

Journal of Law and Health

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation …

The Future Of The Americans With Disabilities Act: Website Accessibility Litigation After Covid-19, Randy Pavlicko

Cleveland State Law Review

The Americans with Disabilities Act (ADA) was enacted in 1990 to eliminate discrimination against individuals with disabilities. Over time, as society has become more reliant on the internet, the issue of whether the ADA’s scope extends beyond physical places to online technology has emerged. A circuit split developed on this issue, and courts have discussed three interpretations of the ADA’s scope: (1) the ADA applies to physical places only; (2) the ADA applies to a website or mobile app that has a sufficient nexus to a physical place; or (3) the ADA broadly applies beyond physical places to online technology. …

Unexpected Inequality: Disparate-Impact From Artificial Intelligence In Healthcare Decisions, Sahar Takshi

Journal of Law and Health

Systemic discrimination in healthcare plagues marginalized groups. Physicians incorrectly view people of color as having high pain tolerance, leading to undertreatment. Women with disabilities are often undiagnosed because their symptoms are dismissed. Low-income patients have less access to appropriate treatment. These patterns, and others, reflect long-standing disparities that have become engrained in U.S. health systems.

As the healthcare industry adopts artificial intelligence and algorithminformed (AI) tools, it is vital that regulators address healthcare discrimination. AI tools are increasingly used to make both clinical and administrative decisions by hospitals, physicians, and insurers—yet there is no framework that specifically places nondiscrimination obligations …

Regulatory Responses To Data Privacy Crises And Their Ongoing Impact On E-Discovery, Teo Marzano

Global Business Law Review

This note argues that advancements in technology and data analysis have reduced the efficacy of the legal data privacy framework in the United States. Furthermore, foreign law blocking statutes expose litigants and corporations to increased data liability. Indeed, not only do consumers lack adequate legal remedies, but litigants face uncertain legal liability and increased costs. Simply put, updated technology requires updated laws. Better data management protects consumers and data value. A legal framework with clear guidelines for protecting data is needed.

Still, data access is integral to litigation, and courts must balance the need for data against the need for …

Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray

Law Faculty Articles and Essays

This essay describes how the privacy debate that emerged over digital contact tracing and Google’s and Apple’s decisions to strictly limit apps permitted to use their platforms resulted in undercutting their potential usefulness as a tool to combat the pandemic while still failing to engender trust in these tools as intended.

No Longer Innocent Until Proven Guilty: How Ohio Violates The Fourth Amendment Through Familial Dna Searches Of Felony Arrestees, Jordan Mason

Cleveland State Law Review

In 2013, the United States Supreme Court legalized DNA collection of all felony arrestees upon arrest through its decision in Maryland v. King. Since then, the State of Ohio has broadened the use of arrestee DNA by subjecting it to familial DNA searches. Ohio’s practice of conducting familial DNA searches of arrestee DNA violates the Fourth Amendment because arrestees have a reasonable expectation of privacy in the information that is extracted from a familial DNA search and it fails both the totality of the circumstances and the special needs tests. Further, these tests go against the intention of the …

Appendix B: Ohio Attorney General Facial Recognition Task Force Proposal On Monitoring, Auditing, Enforcement And Transparency, Brian E. Ray, Dennis Hirsch

Law Faculty Reports and Comments

Policy controls that govern agency activity generally contain at least two components: (1) a substantive policy; and (2) a governance structure for ensuring implementation of and compliance with that policy. Effective controls require both. This proposal focuses on the second component, the governance structure. Specifically, it addresses routine monitoring, annual audits, enforcement of the AG’s policies that govern the facial recognition system, and public transparency. Established facial recognition policies, including those that the Task Force has looked to as models, recognize the importance of establishing such a governance structure.

We have reviewed existing federal and state policy templates documents in …

Concussions And Contracts: The National Football League's Limitations To Protecting Its Players From Chronic Traumatic Encephalopathy, Julia Wolpert

Journal of Law and Health

Chronic Traumatic Encephalopathy (CTE) is a neurodegenerative brain injury that has become prevalent among high-contact professional sports, especially American football. More and more retired players are exhibiting symptoms of CTE and being diagnosed with CTE post-mortem. While the neuroscience community constantly releases studies showing a causal connection between brain trauma and CTE, the National Football League (NFL) continues to deny that any brain injury can arise from playing football. The NFL must implement provisions in their contracts to fully inform and protect players from this lethal brain injury. This article examines the repercussions of CTE, how players’ contracts do and …

A New Age Of Evolution: Protecting The Consumer’S Moral And Legal Right To Know Through The Clear And Transparent Labeling Of All Genetically Modified Foods, Halie M. Evans

Journal of Law and Health

The United States government, until recently, did not require the labeling of genetically modified organisms (GMOs). On July 29, 2016, President Barack Obama signed into law the National Bioengineered Food Disclosure Standard (NBFDS). This law directs the United States Department of Agriculture (USDA) to create regulations that require manufacturers to disclose certain bioengineered products on food labels. On December 20, 2018, the USDA released the final regulations for the NBFDS, which requires food manufactures, importers, and certain retailers to ensure bioengineered foods are appropriately disclosed. The final regulations include provisions that will leave the majority of GMO derived foods unlabeled. …

From Fitbits To Pacemakers: Protecting Consumer Privacy And Security In The Healthtech Age, Justin Evans, Katelyn Ringrose

Et Cetera

As wearable and analytics technology continues to be aggressively adopted, there is a congruent rise in data collection from wearable healthtech devices. This unprecedented rise in data collection poses massive privacy and security issues. This note addresses the benefits of IoT healthcare wearables and implants, as well as identifies where the privacy and security of data accrued by such devices could be improved. In an effort to better encapsulate the issue surrounding wearable device data collection, the authors analyze the many benefits of wearable healthcare devices, as well as look into the false sense of trust consumers have in the …

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Collaborative Approaches To Blockchain Regulation: The Brooklyn Project Example, Patrick Berarducci

Cleveland State Law Review

Today, I am going to discuss, at a high level, blockchain technology—what it is, what are its unique features that could revolutionize markets and economies, and how it could impact law and regulation. That is a lot to cover—far too much in the time allotted. So I will keep things at a very high level and hopefully pique some interest in everyone to dig deeper on their own.

The Human Element: The Under-Theorized And Underutilized Component Vital To Fostering Blockchain Development, Joshua A.T. Fairfield

Cleveland State Law Review

Blockchain is about one-third math and two-thirds game theory. The math runs on silicon processors. The game theory runs on grey matter. Earlier in this symposium, the last panel essentially asked, "What's different about blockchain and its relationship to humans?" That will be our focus: What is the right relationship between technology and the community that builds it? And, why would we care?

Conceptualizing The Regulation Of Virtual Currencies And Providers: Friction Points In State And Federal Approaches To Regulating Providers Of Payments Execution And Custody Services And Products In The United States, Sarah J. Hughes

Cleveland State Law Review

This essay evaluates the state of regulation by the United States government and State legislatures of participants in emerging virtual-currency businesses. It points to friction points as both the federal government and the States experiment with their own regulatory authority over virtual-currency businesses and provides a taxonomy of differing approaches to regulating such businesses. The essay takes the position that the States need to act in the near term if they wish to maintain their longstanding role as regulators of non-depository providers of financial products and services—or they risk being preempted by Congress or federal regulatory actions. This essay also …

Smart Contracts In Traditional Contract Law, Or: The Law Of The Vending Machine, Jonathan Rohr

Cleveland State Law Review

Smart contracts are the new norm, yet state legislatures and courts have not developed set rules and answers to legal disputes that these contracts create. Is traditional contract law sufficient? Or should we create an entirely new legislative or common law scheme to deal with these disputes? The common law has proven to be successful in dealing with new technologies and contracts, particularly because of its flexibility. Although a major overhaul may be in the future, there are still solutions that we can find today with the current legal landscape given the state of contract law and its evolution over …