Digital Commons Network^™

Bending The Health Cost Curve: The Promise And Peril Of The Independent Payment Advisory Board, Ann Marie Marciarille

Faculty Works

Underlying today's and the future's health care reform debate is a consensus that America's health care financing system is in a slow-moving but deep crisis: care appears substandard in comparison with other advanced industrial countries, and relative costs are exploding beyond all reasonable measures. The Obama Administrations' Patient Protection and Affordable Care Act (ACA) attempts to grapple with both of these problems. One of the ACA's key instrumentalities is the Independent Payment Advisory Board - the IPAB, designed to discover and authorize ways to reduce the rate of growth of Medicare and other categories of health spending. The IPAB is …

Planning For The Next Century Or The Next Week, Whichever Comes First, Erik M. Jensen

Faculty Publications

I look at long term planning in law schools.

What Is The Meaning Of Health? Constitutional Implications Of Defining 'Medical Necessity' And 'Essential Health Benefits' Under The Affordable Care Act, B. Jessie Hill

Faculty Publications

One consequence of the Affordable Care Act (ACA) is that government will come to play a more extensive role in healthcare decision-making by individuals and their providers. The ACA does not directly regulate access to health services, but by means of a system of funding, mandates, and penalties, it essentially requires many employers to provide, and most individuals to carry, a certain minimum level of health insurance. Governmental decisions about which medical services qualify as medically necessary and appropriate may take on a new and greater importance, because government officials will be required to decide what sorts of procedures must …

The Adverse Effects Of Aquatic Invasive Species On Native Commercial And Recreational Fisheries Of The Great Lakes And The Exacerbation Of The Problem By Judicial Reluctance To Act, Andrew S. Leung

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Harvesting A Lawsuit: Challenging The Enforcement And Validity Of Monsanto's Transgenic Seed Patents, Kelly E. Calder

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Naturally Confusing Consumers: Express Federal Preemption Of State Claims Regarding False And Misleading Food Product Labels, Taryn M. Deveau

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Paper Case: The Neutral Reportage Privilege In Defamation Cases And Its Impact On The First Amendment, Shelly Rosenfeld

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Health Equity, Healthy People 2020, And Coercive Legal Mechanisms As Necessary For The Achievement Of Both, Emily Whelan Parento

McGeorge School of Law Scholarly Articles

Principles of health equity require that all people have equal opportunity to develop and maintain their health, yet in the face of widespread and presumptively inequitable health disparities, the law has done little. This paper argues that health equity demands the use of coercive legal mechanisms in certain circumstances given the existence of current disparities and the evidence of effectiveness of direct regulation as compared to its alternatives. Moreover, the paper argues that Healthy People 2020, which is the nation's “master blueprint for health” and explicitly seeks to achieve health equity, has not fully incorporated the principles of health equity …

Making Pesticides Public: A Disclosure-Based Approach To Regulating Pesticide Use, Brian Jacobson

Minnesota Law Review, Vols. 1-106:1 (1917-2021)

No abstract provided.

Aquadvantage Is Not Real Advantage: European Biotechnology Regulations And The United States’ September 2010 Fda Review Of Genetically Modified Salmon, Katherine Wilinska

Minnesota Journal of International Law, Vols 1-28:1 (1992-2019)

No abstract provided.

Importing The Flawless Girl, Kit Johnson

Faculty Articles

Fashion model visas have never been the subject of scholarly treatment, much less a focused analysis. In fact, they have been the subject of considerable confusion in Congress and have become a polarizing issue in public debate. Clarity is important, because the granting of visas to fashion models has an undeniably positive economic impact on a major U.S. industry. Moreover, fashion model visas have the unique potential to serve as levers to affect important aspects of social policy and to address public health concerns. This paper begins by examining what it takes to be a fashion model and why the …

Risk And Responsibility: State Regulation And Enforcement Of The Direct-To-Consumer Genetic Testing Industry, Helen C. Dick

Saint Louis University Journal of Health Law & Policy

No abstract provided.

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

Standards For Health Care Decision-Making: Legal And Practical Considerations, A. Kimberley Dayton

Faculty Scholarship

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. …

In Defense Of The Short Cut, Stephen M. Johnson

Articles

Congress frequently gives administrative agencies a choice of several different tools—including legislative rulemaking, nonlegislative rulemaking, and adjudication—to interpret and apply the statutes that they administer. When Congress gives agencies a choice, courts rarely second-guess the agencies’ choice of policymaking tool. Rarely, that is, unless the agency chooses to interpret a statute through nonlegislative rulemaking. ...

Part II of this Article explores the variety of policymaking tools that are available to agencies, the deference generally accorded an agency’s choice of tool, and the reluctance of courts to defer when agencies choose to make policy through nonlegislative rulemaking. Part III explores Franklin’s …

A Right To Farm In The City: Providing A Legal Framework For Legitimizing Urban Farming In American Cities, Susanne A. Heckler

Valparaiso University Law Review

No abstract provided.

The Lawmaking Family, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

Increasingly there are conflicts over families trying to "opt out" of various legal structures, especially public school education. Examples of opting-out conflicts include a father seeking to exempt his son from health education classes; a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality; and a vegetarian student wishing to opt out of in-class frog dissection. The Article shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized by the Supreme Court in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In …

No Toy For You! The Healthy Food Incentives Ordinance: Paternalism Or Consumer Protection?, Alexis M. Etow

American University Law Review

No abstract provided.

The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor

Michigan Journal of Environmental & Administrative Law

A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and …

Adaptable Due Process, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the …

Superweeds And Suspect Seeds: Does The Genetically-Engineered Crop Deregulation Process Put American Agriculture At Risk, Margaret Sova Mccabe

Law Faculty Scholarship

The federal government’s regulatory approach to genetically engineered (GE) crops, known as “The Framework”, is now twenty-five years old. Despite two and half decades of a consistent regulatory regime, GE crop and food regulation remains controversial. This article suggests that regulatory science and its tenets of independence, transparency, and public science should guide reforms of The Framework so that it is an efficient and reliable regulatory system. The article has four parts: 1) it provides a brief overview of the history of GE crop regulation; 2)it describes the key attributes of The Framework and related regulatory documents, with particular focus …

Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?, Stephen J. Powell, Trisha Low

UF Law Faculty Publications

As World Trade Organization ("WTO") Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade and human rights to an extent unparalleled in the culturally disparate and near-unmanageable, 150-plus member WTO itself. These new provisions have used trade's huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade's adverse effects. Employing the perspectives both of trade negotiators and students of …

Why We Should Never Pay Down The National Debt, Neil H. Buchanan

UF Law Faculty Publications

Calls either to balance the federal budget on an annual basis, or to pay down all or part of the national debt, are based on little more than uninformed intuitions that there is something inherently bad about borrowing money. We should not only ignore calls to balance the budget or to pay down the national debt, but we should engage in a responsible plan to increase the national debt each year. Only by issuing debt to lubricate the financial system, and to support the economy’s healthy growth, can we guarantee a prosperous future for current and future citizens of the …

Owning Laura Silsby’S Shame: How The Haitian Child Trafficking Scheme Embodies The Western Disregard For The Integrity Of Poor Families, Shani M. King

UF Law Faculty Publications

Using the Laura Silsby Haitian adoption case as a window into child placement schemes that affect poor families, this Article proceeds in four parts. Part I tells the story of the Silsby case and shows how the idea of rescuing poor Haitian children became the narrative that ultimately excused Silsby’s decision to move Haitian children who were not orphans across the border to the Dominican Republic. Part II describes the development of intercountry adoption (ICA) as a means of “saving” poor children and explains how the strength of this rescue narrative feeds illicit child trafficking schemes. Part II also explores …

Plowing In Hope: A Three-Part Framework For Incorporating Restorative Justice Into Sentencing And Correctional Systems, Lynn S. Branham

All Faculty Scholarship

This essay proposes the adoption of a three-part framework to effectuate fundamental changes in conventional sentencing and correctional constructs, making restorative justice a mainstay of sentencing and correctional systems. First, federal, state, and local governments would authorize the imposition of what would be – in name, purpose, and content – “restorative sentences.” The growing, processing, and distribution of locally grown foods in low-income neighborhoods particularly afflicted by crime is an example of what could become a prevalent restorative sentence. The essay outlines a number of steps to be undertaken by jurisdictions in order to realize the goals of restorative sentencing. …

Vacation At The Farm: Why Courts Should Not Extend Remand Without Vacation To Environmental Deregulation, Benjamin W. Tettlebaum

Cornell Law Review

No abstract provided.

The World Anti-Doping Code, The Athlete’S Duty Of “Utmost Caution,” And The Elimination Of Cheating, Paul A. Czarnota

Marquette Sports Law Review

None

Becoming Too Small To Bail? Prospects For Workers In The 2011 Economy And 112th Congress, Lonnie Golden

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

Child Welfare Cases Involving Mental Illness: Reflections On The Role And Responsibilities Of The Lawyer-Guardian Ad Litem, Frank E. Vandervort

Articles

Child welfare cases involving mental illness suffered either by a child or his parent can be among the most difficult and perplexing that a child’s lawyerguardian ad litem (L-GAL) will handle. They may present daunting problems of accessing necessary and appropriate services as well as questions about whether and when such mental health problems can be resolved or how best to manage them. They also require the L-GAL to carefully consider crucially important questions—rarely with all the information one would like to have and too often with information that comes late in the case, is fragmented or glaringly incomplete. This …

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …