Law Commons^™

Fraud Law And Misinfodemics, Wes Henricksen

Utah Law Review

During the COVID-19 pandemic, many on whom the public depended for truthful information purposefully or recklessly spread misinformation that put thousands at risk. The term “misinfodemic,” coined in 2019, describes such events where misinformation facilitates the spread of a disease or causes some other health-related outcome. Though the term was only recently defined, the recent misinfodemic was not a new or novel phenomenon. False information is spread to the public all the time. This often results in harm to public health. False claims are communicated by corporations seeking to mislead the public to make more money, by politicians to gain …

Public-Private Litigation For Health, Liza S. Vertinsky, Reuben A. Guttman

Utah Law Review

Public health litigation can be a powerful mechanism for addressing public health harms where alternative interventions have failed. It can draw public attention to corporate misconduct and create a public record of the actions taken and the harms done. In an ideal world, it could achieve compensation for past harms and incentivize deterrence of future misconduct. But the full public health potential of these lawsuits is rarely achieved, even when the suits are brought on behalf of federal, state, and local governments with the ostensible goal of protecting the health of the citizens. The increasing involvement of private attorneys in …

Covid-19 Protocols For Ncaa Football And The Nfl: Does Collective Bargaining Produce Safer Conditions For Players?, Michael H. Leroy

Utah Law Review

My study surveyed all NCAA football programs in Power 5 conferences during the 2020 season to compare their COVID-19 safety protocols to those in the NFL-NFLPA labor agreement. College protocols lacked input from a players association. In contrast, the NFL and their players collectively bargained a seventy-two-page agreement for COVID- 19 protocols. Policies from nineteen college football programs fell far short of NFL-NFLPA standards, scoring ten to thirty points out of the forty-five safety points in the NFL labor agreement. College policies were strongest for symptom checking and cardiac evaluations. However, most college policies failed to identify players with individual …

Problematic Interactions Between Ai And Health Privacy, Nicholson Price

Utah Law Review

The interaction of artificial intelligence (AI) and health privacy is a two-way street. Both directions are problematic. This Essay makes two main points. First, the advent of artificial intelligence weakens the legal protections for health privacy by rendering deidentification less reliable and by inferring health information from unprotected data sources. Second, the legal rules that protect health privacy nonetheless detrimentally impact the development of AI used in the health system by introducing multiple sources of bias: collection and sharing of data by a small set of entities, the process of data collection while following privacy rules, and the use of …

Certificates Of Confidentiality: Mind The Gap, Leslie E. Wolf, Laura M. Beskow

Utah Law Review

Certificates of Confidentiality (“Certificates”) are a federal mechanism designed to protect sensitive, identifiable research data from compelled disclosure in any legal proceeding. The 21st Century Cures Act revised the authorizing statute to address criticisms raised about the Certificates’ coverage and protections. Despite many changes that expanded the scope and reinforced the protection of Certificates, questions remain concerning the robustness of the protection Certificates afford. Here, we briefly review the legal evolution of Certificates and then examine the gaps in protections that remain and their implications. We conclude with recommendations for areas of clarification and future research.

Covid-19 And Its Impact(S) On Innovation, Clark Asay, Stephanie Plamondon Bair

Utah Law Review

In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.

Proceedings Of The 2020 Lee E. Teitelbaum Utah Law Review Symposium, Utah Law Review

Utah Law Review

In the autumn of 2020, the Utah Law Review, in cooperation with the S.J. Quinney College of Law Center for Law and Biomedical Sciences, convened a twoday virtual symposium exploring “The Law and Ethics of Medical Research.” On November 13th, leading scholars from across the country joined us for a panel discussion titled “Sharing Medical Research Data: Privacy and Confidentiality.” On November 20th, a second set of distinguished scholars and practitioners gathered virtually for three more panel discussions: “Clinical Trials—Legal and Ethical Issues in the Age of COVID-19,” “Intellectual Property and Medical Research,” and “Medical Research as a Public Health …

Preface, Tammy M. Frisby, Leslie P. Francis

Utah Law Review

When the Utah Law Review editors selected the topic for this symposium issue in early February 2020, we did not anticipate—nor would we have wished for—how exceptionally timely the topic would become over the next year-and-a-half. By the time we were extending invitations to participate in the fall 2020 symposium event, most teaching and learning at the law school, including the annual Lee E. Teitelbaum law review symposium, had moved online. As in so many aspects of life during the pandemic, our conversations turned to COVID-19. The extent and forms of regulation of medical research in the U.S. are sources …

Supported Decisions As The Patient’S Own?, Leslie Francis

Utah Law Faculty Scholarship

This brief commentary addresses what I regard as the thorniest challenge to supported decision making: how to determine if a supported decision really is the decision of the supported person, rather than an insidious form of concealed paternalism or conflicts of interest. The risk that apparent supported decision-making really becomes the decision of the supporter looms as capacities wane. Peterson, Karlawash and Largent (PK&L), who offer a defense of supported decision making in health care for people with dynamic and diminishing capacity, are alert to these problems but skirt their implications. The authors’ model for supported decisionmaking is incomplete; at …

Universal Access To Clean Water For Tribes In The Colorado River Basin, Heather Tanana, Jaime Garcia, Ana Olaya, Chelsea Colwyn, Hanna Larsen, Ryan Williams, Jonathan King

Utah Law Faculty Scholarship

The coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence.

This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack piped water …

One Child Town: The Health Care Exceptionalism Case Against Agglomeration Economies, Elizabeth Weeks

Utah Law Review

This Article offers an extended rebuttal to the suggestion to move residents away from dying communities to places with greater economic promise. Rural America, arguably, is one of those dying places. A host of strategies aim to shore up those communities and make them more economically viable. But one might ask, “Why bother?” In a similar vein, David Schleicher’s provocative 2017 Yale Law Journal article, Stuck! The Law and Economics of Residential Stagnation, recommended dismantling a host of state and local government laws that operate as barriers to migration by Americans from failing economies to robust agglomeration economies. But Schleicher …

Debilitating Southeastern Community College V. Davis: Achieving The Promise Of Disability Civil Rights, Leslie Francis

Utah Law Faculty Scholarship

Disability civil rights law today continues to be shaped by troubling precedent created in initial decisions of the Supreme Court under the Rehabilitation Act. This article explores the first of these decisions, Southeastern Community College v. Davis, demonstrates Davis’ continuing impact, and analyzes how this impact may be addressed. Davis was a suit brought by a hearing-impaired student who had been refused accommodations and denied admission to the College’s nursing program. Critical litigation decisions on behalf of Davis at the trial court did not contest the College’s failure to provide accommodations that are common today, such as sign interpretation, or …

Health Information Beyond Pandemic Emergencies: Privacy For Social Justice, Leslie Francis

Utah Law Faculty Scholarship

Moving beyond notice and choice is necessary if data are to be used responsibly for public health. But what directions might this movement take? Transparency and enactment of statutory limits on data uses are the two most prominent possibilities.

Transparency could require entities collecting, possessing and using information drawn from more than a specified number of individuals to make public disclosures of their information collection, possession, and use. There are models for developing such transparency requirements. The California CPPA could provide a model for delineating the size of entities required to make such disclosures. The requirements to disclose the results …

Covid-19 As An Example Of Why Genomic Sequence Data Should Remain Patent Ineligible, Jorge L. Contreras

Utah Law Faculty Scholarship

The researchers who determined the genomic sequence of the SARS-CoV-2 virus did not seek to patent it, but instead released it in the publicly-accessible GenBank data repository. Their release of this critical data enabled the scientific community to mobilize rapidly and conduct research on a range of diagnostic, vaccine, and therapeutic applications based on the viral RNA sequence. Had the researchers sought patent protection for their discovery, as earlier research teams had during the SARS, H1N1 and H5N1 outbreaks, global research relating to COVID-19 would have been less efficient and more costly. One of the reasons that patents are no …

Beyond The Pandemic: Historical Infrastructure, Funding, And Data Access Challenges In Indian Country, Heather Tanana, Aila Hoss

Utah Law Faculty Scholarship

The COVID-19 pandemic has disproportionately impacted Tribal communities, in part, due to the historical inequities that Tribes have faced for centuries. As sovereign nations, Tribes have the authority to self-govern their people and land. However, the federal government has a special trust responsibility and treaty obligations to Tribes that it often has failed to fulfill. As a result, many Tribal communities live in inferior living conditions as compared to their non-Native counterparts. This Chapter builds on the prior report to explore the historical inequities Tribes experience and how they have been compounded by the pandemic. More specifically, it identifies persistent …

Understanding The Ethics Of Natural Experiments In A Pandemic, Leslie Francis

Utah Law Faculty Scholarship

Pandemics invite natural experiments: testing hypotheses through observing the effects of interventions without manipulating exposure to the intervention. With novel infections like COVID-19 that spread rapidly and widely, knowledge gaps may be extensive. Quick action may be necessary and randomized trials impracticable if not downright impossible. But what can justify such interventions ethically, given that they are in some sense widescale experiments upon unaware members of the public who have no opportunity to choose not to participate? And what ethical limits to them should there be?

A Path To Data-Driven Health Care Enforcement, Jacob T. Elberg

Utah Law Review

The Department of Justice (“DOJ”) has a long-stated goal of encouraging companies to engage in what the author refers to as “compliant behaviors”—maintenance of an effective pre-existing compliance program, post-enforcement adoption of an effective compliance program, cooperation with a government investigation, and self-disclosure of misconduct. Substantial DOJ guidance over the past two decades, along with the concrete incentive structure of the United States Sentencing Guidelines, have increasingly made clear to organizations when and how such behaviors will be rewarded in criminal matters. Recently, DOJ has made transparency and clarity regarding the benefit of compliant behaviors a priority in calculating and …

Negative Freedom In Crisis Times, Leslie Francis

Utah Law Faculty Scholarship

Contemporary U.S. jurisprudence thus treats public health orders requiring masks or limiting attendance at religious services as conflicts between individual freedoms and the public safety. Courts have left unquestioned the scope of individual liberties. Choices about whether to cover one’s face or attend religious services are not, however, fully analogous to protections from physical injury by others. Instead, they are choices that may result in risks to others. It is thus at least open to question whether they are within the scope of protected individual liberties in the first place. The scope of personal liberty—whether liberty is distinct from license—is …