Law Commons^™

Shifting Our Focus From Retribution To Social Justice: An Alternative Vision For The Treatment Of Pregnant Women Who Harm Their Fetuses, April L. Cherry

Journal of Law and Health

The ways in which society responds to pregnant women whose behavior purportedly harms their fetuses can be explored from a variety of legal vantage points. This article argues that the criminal law model currently used is ineffective. The assignment of criminal liability to pregnant women is often rooted in fetal personhood and maternal deviance discourse. Criminal law solutions fail because they fail to take into account the fact that maternal behavior is often the result of a myriad of the social and economic conditions over which pregnant women have little or no control. The criminal law model, therefore, simply punishes …

Rules Are Meant To Be Broken: The Organ Procurement And Transplantation Network Should Allow Pediatric Transplantation Of Adult Lungs, Ciera Parish

Journal of Law and Health

This note analyzes the "Under 12 Rule" and advocates for its abolishment by examining the consequences and discrimination faced by children under the age of twelve since its enactment in 2005 as well as the benefits stemming from the allowance of using adult lungs for pediatric transplantation. Part II discusses the history of organ transplantation law and the current organ transplantation laws as they stand. Part III provides statistical data demonstrating the disparity between pediatric lung transplant candidates and adult lung transplant candidates. Part IV discusses the reasons for the implementation of the "Under 12 Rule" and analyzes the emerging …

King, Chevron, And The Age Of Textualism, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: "If you're right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?" As it turns out, that question was crucial to Roberts's thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question's import (myself included). The result of Roberts's actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite …

Introduction: Issues Of Reproductive Rights: Life, Liberty & The Pursuit Of Policy, Lauren Orrico, Gordon Gantt Jr.

Journal of Law and Health

On March 7, 2014, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled “Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy” in response to recent developments in the regulation of women’s reproductive rights. The discussion about women’s reproductive rights has expanded far beyond the morality of abortion and right to privacy, established by the United States Supreme Court in Roe v. Wade, and has been complicated by new technology, statutory developments, and case law discussing the nature of a corporation. The symposium presenters addressed key legal developments in each stage of …

Legislating Morality Progressively - The Contraceptive Coverage Mandate, Religious Freedom, And Public Health Policy And Ethics, Michael J. Deboer

Journal of Law and Health

This Article studies the contraceptive coverage mandate from three different perspectives. First, it provides a historical treatment of the regulatory rules adopted by agencies in the Obama Administration – specifically, the Departments of the Treasury, Labor, and Health and Human Services, which this Article collectively refers to as “the Administration” or “the Departments” – that imposed the mandate, focusing specifically on the rulemaking processes used to develop and promulgate the rules. In performing this historical study, the Article traces the development of the mandate from its root in the ACA to full implementation in legislative (substantive) rules finalized by the …

Reproductive Justice, Public Policy, And Abortion On The Basis Of Fetal Impairment: Lessons From International Human Rights Law And The Potential Impact Of The Convention On The Rights Of Persons With Disabilities, Carole J. Petersen

Journal of Law and Health

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the …

Practice What You Preach: Does The National School Lunch Program Meet Nutritional Recommendations Set By Other Usda Programs?, ‘Lizabeth Disiena

Journal of Law and Health

Part II of this Note provides a historical background of the National School Lunch Program,20 specifically analyzing the purpose, implementation, and current state of the program. Part III begins by explaining why consideration of calories plays an important role in achieving proper weight management. It then concludes with a comparison between the caloric intake requirements of the National School Lunch Program,21 and the nutritional recommendations by other USDA government health initiatives,22 and non-governmental programs.23 Finally, Part IV proposes that the National School Lunch Program24 provide nutrition options for students that appropriately consider age, gender, and activity level in determination of …

An Incomplete Pass: Inadequacies In Ohio's Youth Concussion Legislation And The Ongoing Risk For Players, Andrew J. Kane

Journal of Law and Health

Broadly, this paper questions whether Ohio’s recently enacted youth concussion legislation adequately addresses the public health issue of sport-related brain injury, and contends that it does not. To that end, it first addresses the significance of traumatic brain injuries, including concussions, explaining that the failure to protect youth athletes from these potentially fatal conditions has largely resulted from a lack of awareness of their influence on neurological functions, and of their potential to cause serious brain injury. Next, this paper examines several legislative responses enacted by other states, all of which were in place before Ohio’s, and compares the recently …

Striking The Soda Ban: The Judicial Paralysis On The Department Of Health, Alana Sivin

Journal of Law and Health

Media coverage surrounding the New York City Department of Health’s recent portion-cap on sugary beverages sold in food service establishments tends to focus on public opinions regarding the role of government. Within this dialogue, there are two camps. On one hand lies the opposition; these individuals criticize the Department of Health as a “nanny state” involving itself with individual consumption choices. On the other side lay the supporters who recognize the gravity of the obesity epidemic and applaud government efforts to ameliorate its effects.

The Not So "Sweet Surprise": Lawsuits Blaming Big Sugar For Obesity-Related Health Conditions Face An Uphill Battle, Catherine Srithong Wicker

Journal of Law and Health

Because obesity and its associated health problems have been largely attributed to poor self-control, laziness, and various other personal failings, society has been unwilling to assign blame to food manufacturers for their role in contributing to this problem. But, as consumers are becoming more aware of the significantly harmful effect that poor diets can have on a person’s heath, the scales may be tipping in favor of bringing “Big Food” to court. Food manufacturers, however, are not exactly vulnerable. Armed with precedent disputing the causal link between consumption of fast food and adverse health effects, judicially-created barriers to admitting epidemiologic …

There's No Place Like Home: How Ppaca Falls Short In Expanding Home Care Services To The Elderly, Nick Vento

Journal of Law and Health

On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (PPACA). In an effort to rebalance states’ spending on long-term services and supports (LTSS) towards home care, PPACA created four new options under Medicaid with which states could provide home care services to their citizens. While PPACA’s creation of these four optional Medicaid HCBS programs allows states more flexibility and the capability to provide enhanced home care services to its citizens, it falls short of completely addressing the existing institutional bias in Medicaid by failing to create a mandatory Medicaid state service plan …

The Federal Rules Of Civil Procedure, Electronic Health Records, And The Challenge Of Electronic Discovery, Terrance K Byrne

Journal of Law and Health

Byrne argues that disparities among different courts’ interpretations of the Federal Rules of Civil Procedure amendments have caused confusion for those in law and healthcare. Additional amendments to the FRCP are necessary to provide clarity, especially in the area of healthcare electronic discovery. Specifically, future amendments should include:

1. Enforcing the “Meet and Confer” process, especially as related to e-discovery and ESI;

2. Clear specification about when the duty to preserve information begins;

3. Delineating reasonable and consistent standards for production of information; and

4. Outlining the details for when sanctions for failing to retain ESI are appropriate

The Threat Lives On: How To Exclude Expectant Mothers From Prosecution For Mere Exposure Of Hiv To Their Fetuses And Infants, Shahabudeen K. Khan

Cleveland State Law Review

There is a renewed interest in HIV/AIDS issues given that better treatment is available. The Department of Justice (DOJ), Civil Rights Division, recently published best practice guidelines to reform HIV-specific criminal laws to conform to modern science. The DOJ’s latest guidelines urge states to “reform and modernize” the laws to reflect modern science. There is a lot of unfinished work regarding the ineffectiveness and stigma associated with HIV criminal transmission laws as a whole. These laws are “no good” and counterintuitive in the fight against this unfortunate disease. There have been calls to repeal these laws in their entirety. That …