Law Commons^™

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Psychopathy As Sword Or Shield? A Legislative Proposal For The Greater Good, Vanessa Catherine Whirl

Vanessa Catherine Whirl

While mental health law has developed over the recent years as the fields of psychology and law combine their research, a gap is still left for one of the world’s most threatening mental health patients, psychopaths. Current legal definitions of “mental illness” exclude this diagnosis from legislation aimed at special attention and treatment of mental health patients. This issue is addressed in this article by legislative history, discussion of needed for changes in the laws regarding psychopathy, and analysis of the Hare Psychopathy Checklist. Finally, a proposal for legislation is made altering the prongs of current civil commitment statutes in …

The Missing Ingredient In The Budget Debate: Phasing Out Social Security And Medicare For High Income Retirees, Samuel C. Thompson

samuel c. Thompson

The budget proposals of the Deficit Commission, Congressman Ryan, and President Obama do not effectively address the long-term problem with the funding of Social Security and Medicare. As a tool for limiting the costs of these two entitlements and thereby helping to put these programs on a sustainable basis without reducing the effectiveness of their “safety net” function, Congress should phase-out the benefits under these programs for high income retirees. Under the phase-outs I propose in this article,

(1) the Social Security benefit would be phased out as individuals move from $75,000 of annual Broadly Measured Income to $175,000 (Social …

The Impact Of Climate Change In Developing Countries: Increasing Rates Of Under-5 Mortality, Monica Rizo

Monica Rizo

This paper proposes that the lack of access to safe drinking water of the climate change in the Sub-Saharan Africa is going to redound in the increase of death of children less than five years old.

The Family Smoking Prevention And Tobacco Control Act: Legislation Passed By Congress Or The Tobacco Companies?, Sakineh A. Majd

Sakineh A. Majd

The Family Smoking Prevention and Tobacco Control Act (“the Act”) was passed by the 111th Congress in June 2009. Granting the FDA substantial authority to regulate tobacco products and how they are marketed, the Act has the power to define the future of the tobacco industry in America, and its passage did not go uncontested. Philip Morris was in support, while competing tobacco firms Reynolds and Lorillard were opposed. With the Act’s controversial passage came accusations that the senators of the 111th Congress voted according to the agendas of the tobacco firms that they were beholden to. I argue that …

Is There An Efficient Antitrust Approach To Health Care?, Kathryn Ciano

Kathryn Ciano

As American states and the federal government wrestle to find a solution to health care reform, some regulators are looking towards antitrust laws in the international marketplace to govern domestic health care policy. Antitrust principles dictate that antitrust authorities must intervene only when pressures become so great as to interfere with the very operations of the market. Pharmaceutical and health care markets rely on free trade and competitive global cooperation, so there is no efficient antitrust approach to health care.

Somebody's Watching Me: Protecting Patient Privacy In De-Identified Prescription Health Information, Christopher R. Smith

Christopher R Smith

Increasingly, legal scholars, state legislatures and the federal courts are examining patient privacy concerns that arise in the context of the dissemination, distribution and use of patient prescription information. However, less attention has been paid to the sharing of de-identified or encrypted patient prescription information versus identifiable patient prescription information. Though many patients may not realize it, identifiable, de-identified and encrypted patient prescription information is being used for a host of purposes other than insurance reimbursement and treatment, most notably for pharmaceutical marketing purposes. Existing state and federal laws and ethical guidelines provide some protection for the privacy of patient …

Religious Exemption Statutes: Betrayest Thou Me With A Statute?, Shirley D. Howell

Shirley D. Howell

This Article analyzes the causal connection between religious treatment exemption statutes and child deaths. Further, the Article develops a nexus between partial immunity statutes and wrongful prosecutions of religious parents

Cash Only Doctors: Challenges And Prospects Of Autonomy And Access, Jeffrey B. Hammond

Jeffrey B. Hammond

With the passage of the Patient Protection and Affordable Care Act of 2010, the American healthcare system is poised to fundamentally change. However, the Affordable Care Act’s passage has made many physicians queasy at the prospect of more bureaucratic control over their professional lives. Hence, a form of ambulatory medicine not seen since before the advent of health insurance, “cash only” medicine, or healthcare encounters fully paid in (usually) the primary care doctor’s office, is beginning to gain more attention among doctors and in the popular press. This Article argues that cash only medicine is a salutary development in the …

Commercial Surrogacy Agreements And The Commerce Clause: Creating Certainty Through Federal Regulation, Robert K. Ochodnicky

Robert K Ochodnicky

There is a great deal of evidence that surrogacy as an industry needs to be regulated, but how and by whom? While family law issues are historically handled at a state level, commercial surrogacy companies have created a mercantile industry within the family law context. These companies operate with profit as the ultimate goal. This sets them apart from other areas of family law and creates an opportunity for the Federal Government to provide the regulation the industry desperately needs. Because commercial surrogacy companies provide a service for a fee and often operate over state lines, Congress should be able …

Of Woman Born? Technology, Relationship, And The Right To A Human Mother, Jennifer S. Hendricks

Jennifer S. Hendricks

This article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception. It takes as its touchstone a claim by sociologist Barbara Katz Rothman, who writes, “Every human child has a right to a human mother.”

While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today. …

Revisiting The Original "Tea Party": The History Of Regulating Food Consumption In America, Alison Peck

Alison Peck

No abstract provided.

Unlocking The Genome: The Legal Case Against Gene Patents, Tiana Leia Russell

Tiana Leia Russell

New, innovative genetic diagnostics and therapies are rapidly changing the way diseases are diagnosed, prevented and treated. While genetic medicine remains it its early stages, its potential to improve patients’ lives cannot be overstated. As biotechnology offers patients the promise of improved healthcare choices, a heated debate has arisen over the propriety of genetic patents and whether anyone has the right to own the information that is encoded in a person’s genes. In this paper, I examine the recent litigation surrounding genetic patents and consider whether they constitute patentable subject matter under 35 U.S.C. §101.

Lebron V. Gottlieb Memorial Hospital: Why The Court Erred In Finding That Caps On Jury Awards Violate Separation Of Powers, Ryan Kenneth June

Ryan Kenneth June

This Note discusses Lebron v. Gottlieb, an Illinois Supreme Court decision which found caps on damages in medical malpractice cases unconstitutional. The Note explores the background of Lebron and the analysis provided by the majority and dissenting opinions before analyzing the court’s finding and discussing the case's impact. This Note concludes that the court’s reasoning was flawed: not only should it be rejected by other states, but it should be overturned in Illinois. Contrary to the court’s holding, the Note argues that caps on damages are not a form of legislative remittitur. Further, remittitur is not an inherent function of …

Transcending Racial And Ethnic Analyses In Clinical Research: A Proposed Model For Institutional Review Boards, Lisa Eckstein

Lisa Eckstein

In 2005, the Food and Drug Administration’s approval of BiDil for use only in self-identified African Americans brought to the fore the longstanding debate about the use of race and ethnicity in medical research and practice. While this issue has received considerable attention in the science and social science literature, thus far there has been little consideration about the legal and regulatory implications of “race-based medicine.” This paper seeks to fill this gap by critiquing the requirements that clinical trials must satisfy in order to be approved by Institutional Review Boards (IRBs). The proposed model highlights a number of gaps …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Jody L Madeira

Legal scholarship portrays women as reproductive decision-makers in odd and conflicting ways. The disparity between depictions of infertile women and women considering abortion is particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar characterizations of pregnant women considering abortion, depicting them as confident and competent decision-makers. This Article argues that, compared to portrayals of women seeking abortions, legal scholars’ characterizations of infertile women inexplicably deny women’s ability to …

The Skinny On The Federal Menu-Labeling Law & Why It Should Survive A First Amendment Challenge, Dayna B. Royal

Dayna B. Royal

In America’s battle of the bulge, the bulge is winning. Contributing to this obesity epidemic is Americans’ increasingly widespread practice of eating at restaurants where deceptively fattening food is served to patrons who grossly underestimate the calories in their meals.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a …

Decriminalizing Profitable Human Organ Exchange For Organ Sources; Improving Our Nation’S Exchange Paradigm Using The Millian Harm Principle, Zachary C. Meeks

Zachary C Meeks

The National Organ Transplant Act (NOTA) and the Uniform Anatomical Gift Act (UAGA) lack jurisdictional legitimacy in prohibiting a profitable human organ exchange. The primary focus of this note is explaining this lack of legitimacy, not the advocacy of particular forms of profitable exchange. Using John Stuart Mill’s harm principle, I will show why imposing criminal liability for profitable human organ exchange remains outside the scope of legitimate government coercion in a free society. The legislative paternalism of NOTA and UAGA illegitimately restrict the liberty of desperately ill people in procuring a life-saving organ and the liberty of people who …

Nursing The Primary Care Shortage Back To Health: How Expanding Nurse Practitioner Autonomy Can Safely And Economically Meet The Growing Demand For Basic Health Care, Michael B. Zand

Michael B Zand

As well-educated health care professionals, nurse practitioners are strongly positioned to fill the primary care gap created by the decreasing number of general practice physicians. However, due to robust opposition from the medical profession, nurse practitioners are burdened by a state by state patchwork of laws that impede their autonomous practice of medicine. Such barriers include limits on the right to prescribe medications, elaborate requirements to collaborate with physicians, and limits on insurance reimbursement. Although the profession of nurse practitioner only began in the 1960s, at which point physicians had long enjoyed a legal monopoly over the practice of medicine, …

Relational Malpractice And The Transformation Of Healthcare Law, Sagit Mor, Orna Rabinovich-Einy

Sagit Mor

Legal scholarship in recent decades has devoted considerable attention to the "malpractice crisis." However, the vast majority of this literature has overlooked the essence of the problem. Mainstream legal writing on malpractice has tended to frame the problem as either an insurance crisis or a litigation crisis. In this article, we offer an alternative understanding of the nature of the current malpractice predicament: the decline of the doctor-patient relationship. We highlight the fact that contemporary doctor-patient interactions resemble a battle zone: a majority of physicians view "every patient as a potential malpractice lawsuit," while patients complain that their physicians are …