Law Commons^™

Ella P. Stewart And The Benefits Of Owning A Neighborhood Pharmacy, Randall K. Johnson

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This Essay is the first to explain how and why Ella P. Stewart, who was among the first Black women to earn a doctoral degree in Pharmacy, used her status as a small business owner to protect the limited set of legal rights that were available to African-Americans in the twentieth century. It also describes how Stewart’s early personal and professional experiences informed her subsequent public service career. Additionally, this Essay highlights the various ways that Stewart expanded the real freedoms that Black Americans enjoyed by guaranteeing they received a fair share of public goods or services. It concludes by …

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

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The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.

Advance Care Planning Is Critical To Overall Wellbeing, Barbara Zabawa

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Wellness is growing market in the United States. McKinsey and Company estimates the spend on wellness products and services to exceed $450 billion in the United States and to grow at more than five percent annually.1 Despite this impressive growth, wellness products and services are falling short of meeting many consumers’ wellness needs.2 Those who feel least satisfied with what wellness has to offer yearn for a more holistic approach to wellness, with a need for more products and services that address sleep and mindfulness concerns.3 Arguably at the heart of these more holistic approaches, particularly those …

Antiabortion Civil Remedies And Unwed Fatherhood As Genetic Entitlement, Yvonne F. Lindgren

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Antiabortion civil remedy laws in effect in five states grant putative fathers the right to sue abortion providers for wrongful death regardless of their relationship to the gestating parent. While these laws represent an important new development in the movement to restrict the abortion right, they also expand parental recognition of unwed fathers. Constitutional law requires that unwed fathers who seek to assert parental rights must establish that they possess both biological connection and a relationship with their child or the gestating parent—what has come to be known as “biology-plus.” However, antiabortion civil remedy laws vest parental recognition and rights …

Dobbs V. Jackson Women’S Health And The Post-Roe Landscape, Yvonne F. Lindgren

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This Article examines some of the important takeaways of the Dobbs v. Jackson Women’s Health decision and the likely reverberations it will have on other areas of law and reproductive healthcare more broadly. The Article proceeds in three parts. Part I examines the majority, concurring, and dissenting opinions to consider what they reveal about the new standard of review for abortion, the shift in power among the members of the Court itself, as well as what the opinion signals might come next. Part II explores the future of abortion in a post-Roe landscape as the abortion rights movement moves from …

Constitutional Issues In Family Law: An Annotated Bibliography (Part 1 Of 2), Allen K. Rostron

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This bibliography covers some of the significant constitutional issues arising in the realm of family law today, as well as other legal and policy issues spinning off of the constitutional controversies. It focuses on issues discussed in the articles in this issue of the Journal of the American Academy of Matrimonial Lawyers.

Covid-19'S Impact On Families, Lawyers, And Courts: An Annotated Bibliography, Allen K. Rostron

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No abstract provided.

Drowsy Driving Considerations In Non-Commercial Drivers For The Sleep Physician, Ann Marie Marciarille, Anand Bhat, David Ingram, Damien Stevens

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The sleep physician faces many challenges in the assessment of drowsy driving. The following article reviews current clinical evaluation methods and legal considerations at the state level in the United States.

Trump’S Angry White Women: Motherhood, Nationalism, And Abortion, Yvonne F. Lindgren

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A majority of white women — fifty-two percent — voted for Donald Trump in the 2016 presidential election. White working-class women supported Trump in even greater numbers: sixty-one percent of white women without college degrees voted for Trump. This result seems remarkable considering Trump’s derogatory statements about women and his staunch opposition to legal access to abortion. Why did white women, especially those most likely to need access to reproductive healthcare—poor and working-class women — vote heavily against their own interests to embrace a candidate who called for punishing women who access abortion? Much recent commentary has considered this question …

The Doctor Requirement: Griswold, Privacy, And At-Home Reproductive Care, Yvonne F. Lindgren

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Supreme Court privacy jurisprudence has traditionally offered greater protection to activities when exercised within the home. This is true in common law as well as across a broad range of constitutional claims. For example, common law privacy identifies the home as a location of solitude and repose, often conceptualized as the “right to be let alone.” Speech, or the right to be free of unwanted messages, is enhanced when the claimant is within the confines of her or his home. Fourth Amendment protections against search and seizure and the notion of the reasonable expectation of privacy are enhanced when the …

The Prescription Drug Pricing Moment: Using Public Health Analysis To Clarify The Fair Competition Debate On Prescription Drug Pricing And Consumer Welfare, Ann Marie Marciarille

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Fair competition law and public health law talk past each other when discussing pharmaceutical pricing and distribution. The former cannot agree on the relevant definition of consumer welfare. The latter does not fully comprehend the highly complex but inherently collective nature of pharmaceutical drug acquisition in the United States. This essay proposes to inject public health discourse into this debate to enrich it, focus it, and render it more accessible to those who must live by its outcome.

Managing Our Microbial Mark: What We Can Learn About Pay For Performance From Ebola's Arrival At Our Shores, Ann Marie Marciarille

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The narrative of Ebola’s arrival in the United States has been overwhelmed by our fear of a West African-style epidemic. The real story of Ebola’s arrival is about our healthcare system’s failure to identify, treat, and contain healthcare associated infections. Having long been willfully ignorant of the path of fatal infectious diseases through our healthcare facilities, this paper considers why our reimbursement and quality reporting systems made it easy for this to be so. West Africa’s challenges in controlling Ebola resonate with our own struggles to standardize, centralize, and enforce infection control procedures in American healthcare facilities.

From Rights To Dignity: Drawing Lessons From The Movements For Aid In Dying And Reproductive Rights, Yvonne F. Lindgren

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In Roe v. Wade the Supreme Court identified the abortion right as “inherently, and primarily, a medical decision” to be decided between doctors and their patients. Early abortion case law closely linked the right to the doctor-patient relationship and situated abortion within the context of healthcare. Over the last forty years, however, the abortion right has come to be viewed almost exclusively as a constitutional right of decision-making or “choice.” Under the Court’s current analysis, the abortion right is cabined exclusively as a constitutional right to decide to terminate a pregnancy and, as a result, the Court has upheld significant …

Transformations In Health Law Practice: The Intersections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara Zabawa, Paula Galowitz

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The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a "hot" area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …

The Medicaid Gamble, Ann Marie Marciarille

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The Patient Protection and Affordable Care Act (ACA) was an unprecedented gamble. The ACA transformed Medicaid from an unevenly and underfunded program for the poor and disabled to a program to offer those priced out of commercial insurance markets government-funded health insurance similar to Medicare, the single-payer system for seniors and the disabled. In a sense, the ACA gambled that Medicaid could be more like Medicare.

The ACA, as it was transformed by the Supreme Court of the United States, became a gamble on the part of the Court that good things would follow from empowering each of the states …

Let Fifty Flowers Bloom: Health Care Federalism After National Federation Of Independent Business V. Sebelius, Ann Marie Marciarille

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Conventional wisdom is that the American public does not want to think too long or too hard about Medicaid. Medicaid’s reputation has long been big, complicated, and widely misunderstood. The 2012 presidential election campaign has been much about Medicaid, but Medicaid is a subject we love to talk around. Yet, our next president will be compelled to think and speak explicitly and fluently about Medicaid because Medicaid is the budget-buster of government funded health insurance. Its budget busting propensities are most pronounced at the intersection of Medicaid and the government-funded health insurance program we do love to discuss: Medicare.

This …

'How's My Doctoring?' Patient Feedback's Role In Assessing Physician Quality, Ann Marie Marciarille

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A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.

The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …

Maximizing Health Care Enrollment Through Seamless Coverage For Families In Transition: Current Trends And Policy Implications, Ann Marie Marciarille, Ken Jacobs, Laurel Lucia, Ann O’Leary

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The Affordable Care Act (ACA) builds on the employment-based health insurance system which is the bedrock of health insurance coverage for most Americans. When these Americans experience a change in their work or family lives, they are at risk for losing their job-based health insurance coverage. The health insurance exchanges established by the ACA provide an unprecedented opportunity to address one of the major sources of gaps in health insurance coverage: transitions in life that result in the loss of health insurance. The uninsured population is not static. Many people who are uninsured cycle in and out of coverage over …

Adopting Accountable Care Through The Medicare Framework, Barbara Zabawa, Louise G. Trubek, Felice Borisey-Rudin

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The Patient Protection and Affordable Care Act of 2010 (PPACA) attempts to provoke change in the status quo in American health care delivery and payment. PPACA created two programs, the Medicare Shared Savings Program (MSSP) and the Pioneer ACO model, which work to bring the concept of Accountable Care Organizations (ACOs) to the Medicare program. At its core, accountable care matches payment for care with performance-based measures, a bold move away from current volume-based models. The paper makes the case that the Medicare-based programs serve as a suitable launch pad for the accountable care movement. The paper explores the emergence …

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

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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 …

Healing Medicare Hospital Recidivism: Causes And Cures, Ann Marie Marciarille

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The role of Medicare in our national market for acute care hospital services is that of a power buyer. Medicare beneficiaries in 2008 included some 45.2 million people. Total benefits paid in 2008 were $462 billion, including 29% of all hospital spending.2 Medicare’s dominance in the buyer’s market for acute care hospital beds renders the program particularly well-suited to scrutinize the role of acute care hospital services in producing effective and efficient outcomes for Medicare beneficiaries. "[I]f there are to be far-reaching changes in the way medicine is practiced in this country, Medicare will have to drive them." It is …