Medicine and Health Sciences Commons^™

Pandemic Federalism, Cary Coglianese

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Legislators, agency officials, and the public have a lot to learn from the United States’ experience in responding to the COVID-19 pandemic. If policymakers take seriously their responsibility to identify past mistakes, and then act now to prepare for future viral outbreaks, the nation can do better in the next crisis. One needed change will take the form of clarifying the essential role for the national government and its leadership in responding to pandemics. The United States needs to create a structure for a pandemic federalism that temporarily but responsively allows for a reconfiguration of public health authority, such that …

Sustaining Lawyers, Seema Saifee

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Many lawyers are drawn to a career in social justice, in part, to help others and, in part, to fulfill their own path to wellness. Advocacy that sustains personal well-being, however, also poses considerable obstacles to well-being. Some of these obstacles are inherent to social justice work but some are embedded within organizational culture. These cultural norms impair the health of advocates, harm the communities with whom they work, and portend far-reaching consequences for the future of progressive struggles for freedom. Drawing on the author's personal experience, this Essay identifies three cultural norms, described as pathologies, that are rarely discussed …

Administrative Law In A Time Of Crisis: Comparing National Responses To Covid-19, Cary Coglianese, Neysun A. Mahboubi

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Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as …

Pandemic Response As Border Politics, Michael R. Kenwick, Beth A. Simmons

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Pandemics are imbued with the politics of bordering. For centuries, border closures and restrictions on foreign travelers have been the most persistent and pervasive means by which states have responded to global health crises. The ubiquity of these policies is not driven by any clear scientific consensus about their utility in the face of myriad pandemic threats. Instead, we show they are influenced by public opinion and preexisting commitments to invest in the symbols and structures of state efforts to control their borders, a concept we call border orientation. Prior to the COVID-19 pandemic, border orientation was already generally …

Lessons From China's Response To Covid-19: Shortcomings, Successes, And Prospects For Reform In China's Regulatory State, Jacques Delisle, Shen Kui

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China’s response to COVID-19 offers a case study of law, the regulatory state and governance in China. The costly delay in the initial response reflected distinctive features of the Chinese system, including perverse incentives local-level officials face to try to cover up problems, fragmentated institutions and rules, and politically weak public health bureaucracies. After the initial shortcomings, China’s largely successful efforts to contain the pandemic also reflected defining features of the Chinese system, including a highly capable, centralized and authoritarian party-state that could mobilize vast resources, coordinate across fractious institutions, create ad hoc government and party leadership bodies, and deploy …

Neurohype And The Law: A Cautionary Tale, Stephen J. Morse

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This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.

Health Care's Market Bureaucracy, Allison K. Hoffman

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The last several decades of health law and policy have been built on a foundation of economic theory. This theory supported the proliferation of market-based policies that promised maximum efficiency and minimal bureaucracy. Neither of these promises has been realized. A mounting body of empirical research discussed in this Article makes clear that leading market-based policies are not efficient — they fail to capture what people want. Even more, this Article describes how the struggle to bolster these policies — through constant regulatory, technocratic tinkering that aims to improve the market and the decision-making of consumers in it — has …

How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver

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Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey …

Chapter: “Health Law And Ethics”, Allison K. Hoffman, I. Glenn Cohen, William M. Sage

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Law and ethics are both essential attributes of a high-functioning health care system and powerful explainers of why the existing system is so difficult to improve. U.S. health law is not seamless; rather, it derives from multiple sources and is based on various theories that may be in tension with one another. There are state laws and federal laws, laws setting standards and laws providing funding, laws reinforcing professional prerogatives, laws furthering social goals, and laws promoting market competition. Complying with law is important, but health professionals also should understand that the legal and ethical constraints under which health systems …

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

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The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

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In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …

Mental Disorder And Criminal Justice, Stephen J. Morse

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This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

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This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

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This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible …

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

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This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

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This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …

Why Baby Markets Aren’T Free, Dorothy E. Roberts

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Creating families in the twenty-first century increasingly happens in markets where the buying and selling of reproductive goods and services are facilitated by advanced technologies, the internet, contracts, and state laws and policies. Thus, the title of this international congress—“Baby Markets”—aptly captures a key aspect of modern reproduction. The ability of potential parents to engage in market transactions involving children enhances parents’ autonomy over their family lives. The free market seems to liberate us from the constraints of biology and state control.

This Essay argues, however, that baby markets aren’t free. Three aspects of the way reproductive goods and services …

The Poverty Of The Neuroscience Of Poverty: Policy Payoff Or False Promise?, Amy L. Wax

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A recent body of work in neuroscience examines the brains of people suffering from social and economic disadvantage. This article assesses claims that this research can help generate more effective strategies for addressing these social conditions and their effects. It concludes that the so-called neuroscience of deprivation has no unique practical payoff, and that scientists, journalists, and policy-makers should stop claiming otherwise. Because this research does not, and generally cannot, distinguish between innate versus environmental causes of brain characteristics, it cannot predict whether neurological and behavioral deficits can be addressed by reducing social deprivation. Also, knowledge of brain mechanisms yields …

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

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This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the …

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

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U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability — a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity. The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called “care-recipient” risk. The second arises out of the risk of becoming responsible for someone else’s care, which …

Concerns And Structural Barriers Associated With Wic Participation Among Wic-Eligible Women, Cindy H. Liu, Heidi H. Liu

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Objectives: To examine sociodemographic, psychosocial concerns, and structural barriers associated with women's participation in the USDA's Women, Infants, and Children (WIC) program among those eligible for the program.

Design and Sample: 1,634 White, African American, Hispanic, and Asian/Pacific Islander (A/Pl) women from the New York City area completed the Pregnancy Risk Assessment Monitoring System (PRAMS) from 2004-2007, a population-based survey.

Measurements: Data on WIC eligibility and participation, sociodemographic details, unintended pregnancy, social support, and structural barriers were evaluated.

Results: Hispanics and Blacks were 4.1 and 2.4 times more likely to participate, respectively, in the WIC program relative to Whites. Mothers …

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

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This article is based on the author’s Barrock Lecture in Criminal Law presented at the Marquette University Law School. The central thesis is that the folk psychology that underpins criminal responsibility is correct and that our commonsense understanding of agency and responsibility and the legitimacy of criminal justice generally are not imperiled by contemporary discoveries in the various sciences, including neuroscience and genetics. These sciences will not revolutionize criminal law, at least not anytime soon, and at most they may make modest contributions to legal doctrine, practice, and policy. Until there are conceptual or scientific breakthroughs, this is my story …

The Developmental Effect Of State Alcohol Prohibitions At The Turn Of The 20th Century, Mary F. Evans, Eric Helland, Jonathan Klick, Ashwin Patel

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We examine the quasi-randomization of alcohol consumption created by state-level alcohol prohibition laws passed in the U.S. in the early part of the 20th century. Using a large dataset of World War II enlistees, we exploit the differential timing of these laws to examine their effects on adult educational attainment, obesity, and height. We find statistically significant effects for education and obesity that do not appear to be the result of pre-existing trends. Our findings add to the growing body of economic studies that examines the long-run impacts of in utero and childhood environmental conditions.

Medicare Secondary Payer And Settlement Delay, Eric Helland, Jonathan Klick

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The Medicare Secondary Payer Act of 1980 and its subsequent amendments require that insurers and self-insured companies report settlements, awards, and judgments that involve a Medicare beneficiary to the Centers for Medicare and Medicaid Services. The parties then may be required to compensate CMS for its conditional payments. In a simple settlement model, this makes settlement less likely. Also, the reporting delays and uncertainty regarding the size of these conditional payments are likely to further frustrate the settlement process. We provide results, using data from a large insurer, showing that, on average, implementation of the MSP reporting amendments led to …

The Effect Of Any Willing Provider And Freedom Of Choice Laws On Prescription Drug Expenditures, Jonathan Klick, Joshua D. Wright

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Any Willing Provider and Freedom of Choice laws restrict the ability of managed care entities, including pharmacy benefit managers, to selectively contract with providers. The managed care entities argue this limits their ability to generate cost savings, while proponents of the laws suggest that such selective contracts limit competition, leading to an increase in aggregate costs. We examine the effect of state adoption of such laws on total state healthcare spending, finding that any willing provider/freedom of choice laws are associated with cost increases of at least 3 percent. These results suggest that these laws are harmful from a spending …

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

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Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

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The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to …

Commentary: Reflections On Remorse, Stephen J. Morse

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This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

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In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts …

Cultural Collisions And The Limits Of The Affordable Care Act, Jasmine E. Harris

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National Federation of Independent Business v. Sebelius (“NFIB”) settled the central constitutional questions impeding the rollout of the Patient Protection and Affordable Care Act (“ACA”): whether the federal government’s “individual mandate” to purchase or hold health insurance and the federal government’s authority to retract existing federal dollars if states fail to expand Medicaid eligibility violate the Constitution. However, a number of residual questions persist in its wake. While most of the focus this year has been on related constitutional issues — such as religious exemptions from offering contraceptive coverage to employees — NFIB also clears the path for a discussion …