Law Commons^™

An Information Prescription For Prescription Drug Regulation, Anita Bernstein, Joseph Bernstein

Faculty Scholarship

No abstract provided.

A Defense Of Embryonic Stem Cell Research, Gregory Dolin

All Faculty Scholarship

On November 21, 2007, sensational scientific developments were reported by major newspapers, both in the United States and abroad. The media reported a new breakthrough in the area of stem cell research. According to two articles published in Science and Cell (both highly respected scientific journals), two teams of scientists were able to “reprogram” adult stem cells into embryonic stem cells, without actually having to experiment on embryos. The discovery was immediately hailed by the White House and other opponents of embryonic stem cell research. The New York Times gushed that the “stem cell wars” may be at an end. …

Why Doctors Shouldn't Practice Law: The American Medical Association's Misdiagnosis Of Physician Non-Compete Clauses, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.

Dirty Business: Legal Prophylaxis For Nosocomial Infections, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.

The Synergy Of Early Offers And Medical Explanations/Apologies, Christopher J. Robinette

NULR Online

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other. Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole. Although some attention has been paid to combining early offers with explanations of the incident or with apologies, the idea has never received a focused analysis. Recent scholarship on explanations and apologies …

Keeping The Label Out Of The Case, Pearson Bownas, Mark Herrmann

NULR Online

No abstract provided.

The Paternalistic Ideology Of Erisa And Unforgiving Courts: Restoring Balance Through A Grand Bargain, Edward A. Zelinsky

Articles

No abstract provided.

A Theory Of Discipline For Professional Misconduct, Nadia N. Sawicki

All Faculty Scholarship

State medical boards derive their licensure and disciplinary authority from the police powers reserved to the states under the 10th Amendment. Though it is clear that public health, safety, and welfare are well-served by the educational and examination requirements uniformly imposed upon medical professionals, many medical practice acts also authorize discipline for professional misconduct that does not directly implicate clinical competence or patient safety - for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging …

Kidney Transplantation: Only For The Well-To-Do?, Jennifer M. Smith

Journal Publications

The world of organ transplantation remains a wealthy one, especially in the United States. This is especially true for kidney transplantations, which involve the solid organ most in demand. Increasingly, transplant professionals desperately push for more solutions to overcome the organ transplant shortage that exists in the United States. Congress has introduced legislation that addresses the additional problem of the high cost of post-transplant anti-rejection medications by providing that the government will pay eighty percent of the cost for the post-transplant medications for life. But unless this bill passes and other needed changes are made, kidney transplantation remains an option …

The Moral Plausibility Of Contract: Using The Covenant Of Good Faith To Prevent Resident Physician Fatigue-Related Medical Errors, 48 U. Louisville L. Rev. 265 (2009), Samuel Vincent Jones

UIC Law Open Access Faculty Scholarship

No abstract provided.

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Journal Articles

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Moral Authority In English And American Abortion Law, Joanna Erdman

Articles, Book Chapters, & Popular Press

In R. (on the application of Axon) v. Secretary of State for Health & Another, the English High Court affirmed that young women are entitled to seek and receive sexual health care, including abortion care, without parental notification. This chapter examines the Court’s use of comparative constitutional authorities in its reasoning, focusing on the rejection of American authorities. Contrast and rejection, it is argued, can be an exercise in self-reflection, revealing how a court understands its own constitutional approach. Aversive constitutionalism presents opportunities to deconstruct claimed similarities and differences in constitutional approaches, to uncover and contest characteristics and assumptions otherwise …

Demythologizing Phosita: Applying The Non-Obviousness Requirement Under Canadian Patent Law To Keep Knowledge In The Public Domain & Foster Innovation, Matthew Herder

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada recently revised the doctrine of non-obviousness in a pharmaceutical “selection patent” case, Apotex Inc. v. Sanofi-Synthelabo Canada Inc. Although cognizant of changes to the same doctrine in the United States and the United Kingdom, a critical flaw in how the doctrine is being applied in Canada escaped the Court’s attention. Using content analysis methodology, this article shows that Canadian courts frequently fail to characterize the “person having ordinary skill in the art” (PHOSITA) for the purpose of the obviousness inquiry. The article argues that this surprisingly common analytical mistake betrays a deep misunderstanding of innovation, …

Dead Men Reproducing: Responding To The Existence Of Afterdeath Children, Browne C. Lewis

Law Faculty Articles and Essays

The statutory mandates are a step in the right direction, but there is still work that needs to be done. The statutes should be amended to close certain loop holes and to ensure that the physician-facilitated suicide option is available to all of the patients who need it. Persons suffering from physical conditions that will lead to death within six months should not be the only persons permitted to exit gracefully. As long as the safeguards included in the statutes are followed, there is no good reason to prohibit persons suffering from irreversible and incurable physical diseases that lead to …

Kidneys, Cash, And Kashrut: A Legal, Economic, And Religious Analysis Of Selling Kidneys, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.

The Manitoba College Of Physicians And Surgeons Position Statement On Withholding And Withdrawal Of Life-Sustaining Treatment (2008): Three Problems And A Solution, Jocelyn Downie, Karen Mcewen

Articles, Book Chapters, & Popular Press

The College of Physicians and Surgeons of Manitoba (CPSM) recently issued a Statement on Withholding and Withdrawl of Life-Sustaining Treatment (2008). The College should be given enormous credit for trying to provide guidance with respect to physicians' obligations in an area of great confusion and controversy. Unfortunately, however, there are some very serious flaws in the Statement. In this paper, we describe three major problems with it that we believe make the case for the claim that the Statement must be revised. We then provide a revised statement that, if adopted, could represent significant progress as it would provide: greater …

Paging King Solomon: Towards Allowing Parents To Donate Organs Of Anencephalic Infants, Fazal Khan, Brian Lea

Scholarly Works

In October of 1987, Canadian doctors artificially sustained the life of an anencephalic infant so that her organs could be transplanted into another child, touching off a fiery debate. At the request of her parents, doctors connected Baby Gabrielle, who was born missing most of her brain, to a respirator before flying her to Loma Linda, California, where her heart was transplanted into the world's youngest recipient of a heart transplant. While Baby Gabrielle's parents insisted that their daughter's organs be used in this manner and were presumably happy with the resulting transplant, one of Baby Gabrielle's doctors expressed qualms …

Juries And Medical Malpractice Claims: Empirical Facts Versus Myths, Neil Vidmar

Faculty Scholarship

Juries in medical malpractice trials are viewed as incompetent, anti-doctor, irresponsible in awarding damages to patients, and casting a threatening shadow over the settlement process. Several decades of systematic empirical research yields little support for these claims. This article summarizes those findings. Doctors win about three cases of four that go to trial. Juries are skeptical about inflated claims. Jury verdicts on negligence are roughly similar to assessments made by medical experts and judges. Damage awards tend to correlate positively with the severity of injury. There are defensible reasons for large damage awards. Moreover, the largest awards are typically settled …

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This paper explores the commodification of women and biological processes, the confusion of scientific evidence with social agendas, and the conflict between marketing and public health. I assert that key actors in the healthcare marketplace - government, businesses, and doctors – have acted to enable weak medical and scientific evidence to be manipulated by ideological and profit-making partisans in a poorly regulated market. I focus on the unique role of the medical profession, which has acted with government and the private sector to shape the markets in human milk and infant formula. In a striking parallel to the pharmaceutical industry, …

Making Sense Of Drug Regulation: A Theory Of Law For Drug Control Policy , Kimani Paul-Emile

Faculty Scholarship

This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model …

Race, Gender, And Genetic Technologies: A New Reproductive Dystopia?, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

His Brain Has Been Mismanaged With Great Skill: How Will Jurors Respond To Neuroimaging Testimony In Insanity Defense Cases, Michael L. Perlin

Articles & Chapters

The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify - have on jurors whose inherent suspicion of mental state opinion testimony is …

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism, Thaddeus Mason Pope

Faculty Scholarship

2.6 million Americans die each year. A majority of these deaths occur in a healthcare institution as the result of a deliberate decision to stop life sustaining medical treatment. Unfortunately, these end-of-life decisions are marked with significant conflict between patients' family members and healthcare providers. Healthcare ethics committees (HECs) have been the dispute resolution forum for many of these conflicts.

HECs generally have been considered to play a mere advisory, facilitative role. But, in fact, HECs often serve a decision making role. Both in law and practice HECs increasingly have been given significant authority and responsibility to make treatment decisions. …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff

Faculty Scholarship

Because tort law generally and healthcare regulation specifically are traditional state functions and because medical, legal, and insurance practices are highly localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. Indeed, this view is so widely held that modern legal scholarship takes it for granted. Articles on general federalism issues use medical malpractice as an easy example of a policy in which federal intervention lacks functional justification, and articles that focus on federalization of other tort reforms use medical malpractice as an easy foil, pointing out that the uniformity interest that justifies …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford, Lolita Buckner Inniss

Publications

In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …

Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin

Articles & Chapters

No abstract provided.

Beyond Bidil: The Expanding Embrace Of Race In Biomedical Research And Product Development, Jonathan Kahn

Faculty Scholarship

In 2005 the FDA approved BiDil, the first drug ever to include a race-specific indication on its label - to treat heart failure in a “black” patient. In the aftermath of this controversial approval and subsequent marketing of the drug, many have wondered whether BiDil was an anomaly or a harbinger of things to come. This article moves beyond BiDil to explore how similar yet distinct models are developing for the continuing exploitation of race in biomedical practice and product development. It will explore the tensions embedded in the persistent use of racial categories even as specific genetic variations linked …

Rescuing Baby Doe, Mary Crossley

Articles

The twenty-fifth anniversary of the Baby Doe Rules offers a valuable opportunity to reflect on how much has changed during the past two-and-one-half decades and how much has stayed the same, at least in situations when parents and physicians face the birth of an infant who comes into the world with its life in peril.

The most salient changes are the medical advances in the treatment of premature infants and the changes in social attitudes towards and legal protections for people with disabilities. The threshold at which a prematurely delivered infant is considered viable has advanced steadily earlier into pregnancy, …