Law Commons^™

Guardianship And Its Alternatives: A Handbook On Maryland Law, Virginia Rowthorn, Ellen A. Callegary

Faculty Scholarship

No abstract provided.

Legal Impediments To The Diffusion Of Telemedicine, Diane E. Hoffmann, Virginia Rowthorn

Faculty Scholarship

No abstract provided.

Restoring Transparency To Automated Authority, Frank Pasquale

Faculty Scholarship

Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity grows important enough, it should be subject to transparency requirements that reflect its centrality. The increasing intertwining of governmental, business, and academic entities should provide some leverage for public-spirited appropriators and policymakers to insist on more general openness.

However well an "invisible hand" coordinates economic activity generally, markets depend on reliable information about the practices of core firms that finance, rank, and rate entities in the rest of …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher T. Robertson, Frank A. Pasquale

Faculty Scholarship

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe.

The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

From Eugenics To The "New" Genetics: "The Play's The Thing", Karen H. Rothenberg

Faculty Scholarship

Genetics occupies a place in the public imagination with which few areas of science can compete. It is popularly understood to be the “science of life,” concerned with the essence of humanity: a subject that generates both awe and fear. These divergent emotions are encapsulated in the “promise versus peril” debate: the promise of an end to human disease is countered by the peril embodied in the discriminatory capacity of genetic essentialism. This debate has become ingrained in popular culture, and its dramatic potential has been effectively realized in theatre.

Plays have always been written and performed as expressions of …

Cognition-Enhancing Drugs: Can We Say No?, Frank Pasquale

Faculty Scholarship

Normative analysis of cognition-enhancing drugs frequently weighs the liberty interests of drug users against egalitarian commitments to a "level playing field." Yet those who would refuse to engage in neuroenhancement may well find their liberty to do so limited in a society where such drugs are widespread. To the extent that unvarnished emotional responses are world-disclosive, neurocosmetic practices also threaten to provide a form of faulty data to their users. This essay examines underappreciated liberty-based and epistemic rationales for regulating cognition-enhancing drugs.

Access To Medicine In An Era Of Fractal Inequality, Frank Pasquale

Faculty Scholarship

Those in the richest countries have far more income and wealth than those in poor countries. Moreover, the most fortunate in the richest countries – particularly those in the top centile of the income distribution – are far richer than those around them. Most dramatically, even within that top centile, the richest of the rich have far more resources than even their elite peers. Like fractals, the patterns of distribution repeat at various levels.

This pattern of fractal inequality ensures that spending that seems trivial to those at the top of an income distribution can overwhelm the purchasing power of …

High Crimes, Not Misdemeanors: Deterring The Production Of Unsafe Food, Rena I. Steinzor

Faculty Scholarship

In the fall of 2008, Minnesota public health officials became alarmed by an unusually high number of illnesses and deaths caused by salmonella poisoning. Federal and state regulators and the news media eventually traced the outbreak back to products supplied by the Peanut Corporation of America (PCA). Employees shipped batches that tested positive for salmonella from a plant with a leaking roof, mold growing on ceilings and walls, rodent infestation, filthy processing receptacles, and feathers and feces in the air filtration system. Under an agreement with the Food and Drug Administration (FDA), Georgia state inspectors visited the PCA plant nine …

Nih Guidelines On Human Embryonic Stem Cell Research In Context: Clarity Or Confusion?, Karen H. Rothenberg, Michael R. Ulrich

Faculty Scholarship

No abstract provided.

Pick Your Poison: Responses To The Marketing And Sale Of Flavored Tobacco Products, Kathleen Hoke Dachille

Faculty Scholarship

This law synopsis explores legal approaches for addressing the marketing and sale of flavored tobacco products to youth.

Prosecuting Doctors For Trusting Patients, Deborah Hellman

Faculty Scholarship

In an escalating phase of our country’s war on drugs, doctors treating patients in pain are being prosecuted for drug trafficking under the Controlled Substances Act. While doctors surely can be guilty of drug trafficking when they sell drugs for money, lately some doctors have been prosecuted for violations of a statute that requires knowingly distributing or dispensing controlled substances in an unauthorized manner for simply being willfully blind to the fact that their patients were reselling the drugs. While willful blindness may be an apt substitute for knowledge in the traditional drug courier scenario, doctors in these cases are …

Physicians Who Break The Law, Diane E. Hoffmann

Faculty Scholarship

This paper takes as its starting point a recent article by Prof. Sandra Johnson, Regulating Physician Behavior: Taking Doctors “Bad Law” Claims Seriously. In the article, Johnson focuses on doctors who comply with the law despite their belief that the law is “bad”, i.e., causes them to behave in ways that are harmful to their patients. In Physicians Who Break the Law, I explore cases where physicians break the law claiming that it is “bad”. In this exploration, I focus on two areas of physicians’ lawbreaking: (1) violations of business-related laws, in particular, insurance fraud; and (2) violations of laws …

A Circumspect Look At Problem-Solving Courts, Richard C. Boldt

Faculty Scholarship

No abstract provided.

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Faculty Scholarship

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?

This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

The Costs Of Multiple Gestation Pregnancies In Assisted Reproduction, Urska Velikonja

Faculty Scholarship

The United States, unlike most developed countries, does not regulate its fertility industry. Rather, it vests control over the industry to professional organizations and to market forces. While lack of regulation has produced a vibrant market for fertility services, it has also produced an undesirable consequence: a high rate of multiple gestation pregnancies, including twin pregnancies. This Article summarizes the data on the medical, psychological, and financial costs associated with multiple pregnancies to the parents, the children, and American society. It suggests that the current U.S. regulatory regime has not only failed to address these costs as they surfaced but …

The Role And Legal Status Of Health Care Ethics Committees In The United States, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

Over a quarter of a century has passed since health care ethics committees (HCECs) in the United States received legal recognition as alternatives to the courts in resolving conflicts related to patient end-of-life care. By the mid to late 1980s HCECs had been established in over half of U.S. hospitals and had received a certain legitimacy in the health care system. Given their age and growth one could characterize them developmentally as emerging from adolescence and establishing themselves in young adult-hood. As a result, we might expect that they would have resolved the identify crisis characterizing the adolescent years. Yet, …

Achieving Quality And Responding To Consumers - The Medicare Beneficiary Complaint Process: Who Should Respond?, Diane E. Hoffmann, Virginia Rowthorn

Faculty Scholarship

No abstract provided.

Are Health Care Conflicts All That Different? A Contrarian View, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Treating Pain V. Reducing Drug Diversion And Abuse: Recalibrating The Balance In Our Drug Control Laws And Policies, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Child Welfare Interventions For Drug-Dependent Pregnant Women: Limitations Of A Non-Public Health Response, Ellen M. Weber

Faculty Scholarship

National drug policy, medical practice and the child welfare system have not kept pace with scientific research that points to effective health interventions to address alcoholism and drug dependence among pregnant women. In its 2003 amendments to the Child Abuse Prevention and Treatment Act, Congress adopted a policy requiring physicians to report to child protective services all patients who give birth to an infant affected by illicit drug use. Drawing on epidemiological, medical and social science research, this Article critiques Congress’s decision to require health professionals to engage in a surveillance role instead of a therapeutic intervention. In seeking to …

Introduction To The Tenth Anniversary Issue Of The Journal Of Health Care Law & Policy , Karen H. Rothenberg, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale

Faculty Scholarship

Retainer care arrangements allow patients to pay a fee directly to a physician's office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as boutique medicine. Both sides are deploying a variety of legal tactics in order to attain their goals.

After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most …

Who Decides Whether A Patient Lives Or Dies?, Diane E. Hoffmann, Jack Schwartz

Faculty Scholarship

No abstract provided.

Oy Canada! Trade's Non-Solution To "The Problem" Of U.S. Drug Prices, Daniel Gilman

Faculty Scholarship

Price disparities—price “differentiation” or “discrimination”—in pharmaceuticals markets have, in recent years, been the subject of much discussion. Price sensitivity should come as no surprise: Medicines play an increasingly important role in healthcare, while pharmaceuticals prices continue to rise. When prices vary greatly within markets or between neighboring markets, the pressure towards arbitrage is clear. This paper considers the question whether the re-importation of medicines from Canada or the EU is well advised and argues that it is not. First, we might reasonably question the extent to which we wish, as a matter of policy, to manage pharmaceuticals pricing; among other …

National Institutes Of Health State-Of-The-Science Conference Statement: Cesarean Delivery On Maternal Request, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen H. Rothenberg, Alice Wang

Faculty Scholarship

Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your …

Autonomy Suspended: Using Female Patients To Teach Intimate Exams Without Their Consent, Robin Fretwell Wilson

Faculty Scholarship

Recent reports of medical students performing pelvic exams for training purposes on anesthetized women without their consent have produced a firestorm of controversy. Peter Ubel and colleagues found that 90% of medical students performed such exams during their obstetrics/gynecology rotations. A series of 2003 reports focused a white-hot spotlight on this teaching practice and resulted in Federal Trade Commission and Department of Justice hearings and action by the American Association of Medical Colleges and the American College of Obstetrics and Gynecology. In this article, Professor Wilson examines the merits of the defenses and justifications for using female patients for pelvic …

Enhancing Access To Health Care And Eliminating Racial And Ethnic Disparities In Health Status: A Compelling Case For Health Professions Schools To Implement Race-Conscious Admissions Policies, Thomas E. Perez

Faculty Scholarship

No abstract provided.

Physicians As Researchers: Difficulties With The "Similarity Position", David Wasserman, Deborah Hellman, Robert Wachbroit

Faculty Scholarship

No abstract provided.