Law Commons^™

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 …

Commercial Surrogacy: Is Regulation Necessary To Manage The Industry?, Cara M. Luckey

Cara M Luckey

This paper discusses legal and ethical issues involved with commercial surrogacy both within the United States and Internationally. Inconsistencies in laws create an increased potential for the exploitation of the parties involved in a surrogacy agreement. The validity of contracts varies between states and certain countries that allow surrogacy do not adequately protect the surrogate mothers. As this field of Assisted Reproductive Technology becomes more prevalent, the need for effective regulation of commercial surrogacy is essential.

Electronic Health Records In The Global Market: Enforcing Security Overseas, Luis J. Acevedo

Luis J Acevedo

ABSTRACT

As the U.S. implements its chimerical plan to contain health care costs and improve the provision of services, aided by the much desired implementation of Electronic Health Records (EHRs) technology, the possibility of an increase in the outsourcing of health care services surfaces. The ordinary citizen should be worried. The protected health information (PHI) contained in their EHRs could be at greater risk when stored, accessed or transmitted overseas. Our current federal regulatory framework does not provide adequate protection because our enforcement mechanisms to ensure the security of data do not extend beyond the U.S. borders. The remedies available …

Accountable Care Organizations: The Clash Of Liability Standards With Cost Cutting Goals”, Christopher R. Smith

Christopher R Smith

This article seeks to examine the conflict between non-cost conscious medical malpractice liability standards and health care cost cutting measures within the context of Accountable Care Organizations (“ACOs”) under the new health care reform law. The article begins by providing an overview of the high level of health care spending within the United States health care system in order to provide a context for better understanding policymakers’ push for cost cutting measures, including ACOs. The article then examines the tension between cost containment efforts and provider medical liability standards through an examination of the “stuck in the middle” mentality that …

The Wisdom Of Solomon: Why We Can't Split The Pre-Embryo, Bridget M. Fuselier

Bridget M Fuselier

Due to the fact that there are at least 500,000 cryo-preserved pre-embryos and a very small amount of common law or statutes to provide guidance, legislators need to act and take steps to guide the people impacted by these problems.

This article promotes modifications to property concepts that protects the special dignity of the pre-embryo while also recognizing the autonomy of the individual gamete providers. The article proposes a form of ownership that would prevent the pre-embryos from passing through wills and by intestate succession. It would also eliminate the possibility of ending up with a multitude of owners for …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Off The Roads & Out Of The Courts: Enter A Technology Fix For Drunk Driving, Nora J. Pasman-Green

Nora J. Pasman-Green

More than 1.4 million people are arrested annually for drunk driving, a crime that results in over 10,000 fatalities, more than 225,000 non-fatal injuries, and economic costs exceeding $50 billion. Drunk driving has become a major public health problem. This article traces development of the technology – the alcohol ignition interlock – which prevents drunk drivers from operating their vehicles. Ongoing research is underway to equip new automobiles with alcohol detection devices as standard equipment. The article explores the possibility of eliminating drunk driving once all vehicles are manufactured with pre-market interlocks installed. The article examines the impact of current …

Patchwork Solution To A Complicated Problem: How The Current Healthcare Legislation Is Failing To Address The Difficulties Created By Undocumented Immigrants., Daniel O. King

Daniel O King

No abstract provided.

Federally Mandated Informed Consent: Has Government Gone Too Far?, Linda P. Mckenzie

Linda P. McKenzie

In 2003, President George W. Bush signed legislation targeted at preventing what lawmakers said was a single, specific abortion procedure. The bill banned a method that is known outside of the medical community as "partial birth abortion." Lower courts, however, struck down the law as a violation of the Supreme Court's requirement that state limits on abortion must include an exception for the life or health of the pregnant woman. The lower courts were upheld by the three circuit courts who reviewed the Partial Birth Abortion Ban Act of 2003. The U.S. Supreme Court accepted certiorari and recently heard oral …

The Military Abortion Ban: How 10 U.S.C. Section 1093 Violates International Standards Of Reproductive Healthcare, Sabrina E. Dunlap

Sabrina E Dunlap

Under 10 U.S.C. Section 1093, women in the military cannot obtain abortion services in military hospitals even if they use their own funds. Women who are stationed abroad are forced to search for services elsewhere in the foreign country in which they are stationed, facing cultural barriers, language barriers, difficult travel arrangements and high costs. In the last ten years, clear standards of reproductive health emerged at an international level, with women’s health being the center of the International Conference on Population and Development, and the Fourth World Conference on Women, among others. The United States is simultaneously encouraging developing …

The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, Jessie Hill

Jessie Hill

The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose “partial-birth” abortion and the right to use medical marijuana, decided just one year apart, the Supreme Court reached radically different results, based on radically different reasoning. In Stenberg v. Carhart, the Supreme Court recognized an almost absolute right to choose a particular abortion procedure if the procedure is the safest for the woman, refusing to defer to the state’s view of the relevant medical facts. …

Erisa Preemption: A Product Rule And The Neglected Workhorse, Joseph Snoe

Joseph Snoe

ERISA preemption of state laws has troubled courts and commentators for over two decades. This article under the umbrellas label the "Product Rule" concludes that a state has broad discretion to regulate products and services marketed in the state, even products and services marketed to ERISA plans.

The article then explans how ERISA section 502 is the exclusive vehicle for Employee Benefit Plan participants and beneficiaries to bring civil suits against HMOs, insurance companies and others doing busienss with the ERISA plans. By contracting with an ERISA plan, a company or person offering services or products to an ERISA plan …