Law Commons^™

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

Vanishing Point: Alzheimer's Disease And Its Challenges To The Federal Rules Of Evidence, Ann Murphy

Ann Murphy

ABSTRACT Vanishing Point: Alzheimer’s Disease and Its Challenges to the Federal Rules of Evidence As of 2012, an estimated 5.4 million Americans suffer from Alzheimer’s disease (AD). By the year 2030, due to the overall aging of our population, the number of individuals with AD is expected to increase dramatically. Courts will consequently confront evidentiary issues involving parties, defendants, witnesses, and victims who are suffering from various stages of the disease. Testimony of course involves descriptions of events that happened in the past and thus frequently involves memory. This article explores three specific areas of evidence that will be affected …

Legal Barriers To Implementing International Providers Into Medical Provider Networks For Workers' Compensation, Richard Krasner

Richard Krasner

Over the last twenty years, medical costs associated with lost time workers’ compensation claims has risen dramatically, despite efforts to reform the system. Medical tourism, a popular option for many seeking lower cost health care, is one option that has yet to catch on. Issues of quality of health care in other countries is no different for workers’ compensation patients, as it is for health care patients, and with accreditation from the Joint Commission International (JCI), hospitals that cater to medical tourists offer better care at lower cost than most U.S. hospitals offer. Certain procedures, common to workers’ compensation claims, …

Legal Materiality And The Implied Certification Theory Of The False Claims Act: Why Courts Have Rejected The Traditional Standards Of Materiality In Favor Of A Precondition To Payment Requirement, Benjamin Dacin

Benjamin Dacin

No abstract provided.

A Hungry Industry On Rolling Regulations: A Look At Food Truck Regulations In Cities Across The United States, Crystal Williams

Crystal Williams

Although street vending has always been a part of the American food economy, in recent years, modern food trucks have become a dining trend that is sweeping the country. With the booming popularity of food trucks, cities across the country are considering ways to regulate the growing number of vendors selling convenient and creative meals to patrons. The purpose of this article is to provide an overview of regulations and ordinances that govern the operation of mobile food units, commonly known as food trucks, in a variety of American cities. Food trucks are regulated by local government agencies, which take …

Where’S The Beef? An Examination Of The ‘Pink Slime’ Controversy And The Implications Of The Real Beef Act On State Truth-In-Menu Laws, Crystal T. Williams

Crystal Williams

Recent criticism concerning the use of lean finely textured beef (“LFTB”), commonly referred to as “pink slime,” has sparked a national debate about whether LFTB should be included on the label of ground beef products sold to the end consumers. On March 30, 2012, the Requiring Easy and Accurate Labeling Beef Act (the “REAL Beef Act”) was introduced to Congress. If passed, the Act would require that “labels on packages of meat include a statement on whether the meat contains [LFTB].” It is not clear from the express language of the REAL Beef Act and its legislative history whether the …

Religion / State: Where The Separation Lies, Vincent Samar

Vincent J. Samar

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, …

Physician-Patient Communications And The First Amendment After Sorrell, Martha S. Swartz

Martha S. Swartz

To what extent are physician-patient communications protected by the first amendment? Because physicians are engaged in a commercial activity and subject to state licensing, courts have subjected the governmental regulation of physician-patient communication to the lower level of scrutiny that they use to analyze restrictions on commercial speech. As a result, states have been free to enact laws that prohibit physicians from discussing certain topics with their patients, as well as laws that require physicians to use state-mandated scripts in talking with their patients. After the U.S. Supreme Court’s decision in Sorrell vs. IMS Health, it now appears that the …

The Real Lethal Punishment: The Inadequacy Of Prison Healthcare And How It Can Be Fixed, G. Nicholas Wallace

G. Nicholas Wallace

There are over 2 million prisoners in the United States and all of them have a fundamental right to healthcare, which, currently, is the only population group to enjoy such a right. This paper focuses on the quality of healthcare that is to be provided to prisoners and some of the reasons why the healthcare that is currently being provided is inadequate. Part II looks at the issue through an ethical lens. It summarizes Kantian ethics and how that theory shapes this issue. Part III will focus on exactly what quality of healthcare prisoners are entitled to and what their …

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Determining Legal Parenthood By Agreement As A Possible Solution To The Challenges Of The New Era, Yehezkel Margalit

Hezi Margalit

Over the past decades, we witnessed changes in the matrimonial and parenting institutions. Medical innovations have further created ethical-legal dilemmas. It is, therefore, essential to create a theory and framework that will determine ways to deal with the resulting dilemma in a fully developed manner. This paper surveys the current, conflicting shifts in family structure and the definition of legal parenthood. In it, I deal with the importance and various aspects of defining legal parenthood. I will also focus on the singularity of this dilemma as it is increasingly apparent in the various fertility treatments. I present the sociological-legal roots …

Risky Business: Health Care Reform’S Impact On The Health-Benefits Market, Nate Horsley

Nate Horsley

This Paper begins by discussing the two largest barriers preventing a value-driven health-benefits market: market conditions that require insurance carriers to compete on risk and the average consumer’s difficulty in making informed, rational purchasing decisions. The Paper then provides a brief overview of the changes PPACA attempts to make and evaluates PPACA’s ability to disincentivize risk-based competition. After analyzing the possible roles for consumers in this new system, the Author concludes that while the insurance exchange provides a solid basis for reducing risk-driven competition, truly empowering consumers to drive the market will prove to be a difficult task.

A Costly Illusion? An Empirical Study Of Taiwan’S Use Of Isolation To Control Tuberculosis Transmission And Its Implications For Public Health Law And Policymaking, Shinrou Lin

Shinrou Lin

The resurgence of tuberculosis (TB) and the emergence of multidrug-resistant TB have resulted in the detention of patients in a number of international jurisdictions since the 1990s, including in Taiwan. The Taiwanese government adopted isolation as an official policy to control TB’s spread in its 2006 Ten-Year Mobilization Plan, whose goal is to halve TB incidence from 66.7 per 100,000 persons to 34 per 100,000 persons. The isolation program allows treating physicians to nominate patients for isolation while public health officials may also isolate patients if necessary. Hospitals providing care to isolated patients would be reimbursed from the budget of …

No Justice, Just Peas: Why Wal-Mart Will Not End D.C.’S Food Deserts, Emily R. Citkowski

Emily R. Citkowski

Without a significant policy shift away from corporate subsidies and towards local capital development, local entrepreneurs may need to abandon traditional for-profit business models in favor of alternative non-profit models that build upon existing community assets. Legislation meant to solve the problem of food deserts should prioritize community-based enterprise because of the capacity to localize capital, create living-wage jobs, and build accountability to community.

Moral Disengagement Of Medical Providers: Another Clue To The Continued Neglect Of Treatable Pain, Kelly Dineen

Kelly Dineen

The neglect of treatable pain is an ongoing reality for patients in all health care settings despite decades of research, education, institutional and organizational initiatives and regulatory reform. Most recently the Accountable Care Act and the Institute of Medicine have called for further work to understand and correct the continued inadequate treatment of pain. To date, research has identified a variety of barriers to treatment from educational deficits to biases to regulatory scrutiny with little change in practice. Yet, very little research has addressed the social cognitive mechanisms used by providers who continue to undertreat pain. This article explores the …

Moral Disengagement Of Medical Providers: Another Clue To The Continued Inadequate Treatment Of Pain, Kelly Dineen

Kelly Dineen

The neglect of treatable pain is an ongoing reality for patients in all health care settings despite decades of research, education, institutional and organizational initiatives and regulatory reform. Most recently the Accountable Care Act and the Institute of Medicine have called for further work to understand and correct the continued inadequate treatment of pain. To date, research has identified a variety of barriers to treatment from educational deficits to biases to regulatory scrutiny with little change in practice. Yet, very little research has addressed the social cognitive mechanisms used by providers who continue to undertreat pain. This article explores the …

Could You Repeat That Please? Forty-Five Years Of Pesticide Experiments On People, Barbara R. Leiterman Esq.

Barbara R. Leiterman Esq.

Little has been published in the literature about pesticide experiments conducted on human subjects. Yet there were at least twenty-two tests between 1967 and 2011 in which people were intentionally exposed to specific doses of pesticides. Almost all of these experiments violated scientific ethics and human rights. This article aims to describe those tests and their shortcomings, and explore the laws and regulations that incentivize such human experimentation. Ironically, as the public desire for pesticide safety increases, so does the industry’s motivation to test pesticides on people. Bringing these pesticide experiments to light, expanding the public discourse on the subject …

Too Many Teeth: Understanding The Medicare Secondary Payer Act And Its Threat To Businesses, James J. Hennelly Iii

James J. Hennelly III

The Medicare Secondary Payer Act (“MSP”), first enacted in 1980, has undergone several changes over the past three decades in an effort by the government to recoup some of its losses from conditional payments it makes on behalf of Medicare beneficiaries. In light of Congress’s many cost-cutting exploits of late, more attention should be drawn towards recent amendments to the MSP in an effort to find a healthy balance between the government’s interest in recouping its losses and private businesses’ interest in staying in business. Congress reacted to increasing Medicare costs in 2003 by inserting in the Medicare Modernization Act …

Insurance Structure And Health Investment, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

The structure of health insurance does not compensate insurers for long-term investments in health, such as those against chronic disease. This paper explores the legal structure of chronic disease treatment by insurers, illustrates the failure of the associated incentives, explores possible improvements and recommends that subsequent insurers (including Medicare) have an obligation to compensate the prior insurer for the averted expenses on diseases that were expected but did not occur.

The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser

Mark Strasser

Personhood statutes and amendments have been proposed in several states. As a general matter, they establish as a matter of state law that legal personhood begins at conception. Such laws may have implications for state policies concerning abortion and contraception, and will have implications for other areas of law including state policies related to assisted reproductive technologies. Yet, some of the ways in which these different areas of law might be affected are not well understood and thus are explored here.

Materiality: A Needed Return To Basics In False Claims Act Liability, Monica P. Navarro

Monica P. Navarro

Thid article discusses the creation and failures of the express and implied certification constructs developed by federal courts to analyze falsity under the False Claims Act and calls for the retirement of these judicial constructs in favor of the adoption of a materiality regime regime for deciding falsity under the Act.

Breakthrough Science And The New Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

Breakthroughs in pharmacology, genetics, and neuroscience are transforming how society views criminals and thus how society should respond to criminal behavior. Although the criminal law has long been based on notions of culpability, science is undercutting the assumption that offenders are actually responsible for their criminal actions. Further, scientific advances have suggested that criminals can be changed at the biochemical level. The public has become well aware of these advances largely due to pervasive media reporting on these issues and also as a result of the pharmaceutical industry’s incessant advertising of products designed to transform individuals by treating everything from …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …

Constructing Access Through Exclusion. The Effect Of Individual And Collective Patent Ownership And Licensing On Openness In Human Genomic Science, Geertrui R.L. Van Overwalle

Geertrui R.L. Van Overwalle

Human genomic science and intellectual property are often considered to be at odds. The present paper is an attempt to analyse the current problems in gene patenting through the lens of individual, multiple and collaborative ownership. The objective of the present chapter is to systematize the relation between modes of ownership, modes of licensing and their effect on access.

Individual and multiple ownership have different effects. Individual ownership may result in blocking patent positions and multiple ownership may lead to hindering patent thickets. Both phenomena frustrate follow-on innovation. The effect of individual and multiple ownership, blocking patents and patent thickets …

Terminal Stress: An Analysis Of Jewish And Common Law Doctrines Related To The Effects Of Stress On Seriously Ill Patients, Martin Hirschprung

martin hirschprung

This essay compares two American legal doctrines -- deathbed bequests and the therapeutic exception to informed consent -- with their Jewish law counterparts in order to contribute to the literature on these doctrines, evaluate recent empirical data and make suggestions concerning the current position of academics and practitioners. In this essay, I will explore the history and theory underlying the laws of delivery for deathbed bequests and the therapeutic exception to informed consent. In order to highlight the principles motivating the common law, I examine the Jewish law’s approach to these doctrines. I posit that Jewish law and common law …

False Certainty: Judicial Forcing Of The Quantification Of Risk, Diana R. H. Winters

Diana R. H. Winters

Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, forcing such quantification may undercut the benefits of judicial review. This Article looks at the judicial forcing of the quantification of risk in two contexts: first, the review of agency action, and second, the determination of whether probabilistic injury satisfies the injury-in-fact standing requirement. By juxtaposing these two contexts, the Article illuminates the work that judges think …

Ailing Health Status In West Bengal Critical Analysis, Bhabani Prasad Mishra Mr., Pranab Kumar Rana Dr

BHABANI PRASAD MISHRA Mr.

Abstract The State of West Bengal in India is at the crossroads in the field of health care delivery system. Nutrition, health and education are the three inputs accepted as significant for the development of human resources and the progress of the State of West Bengal in India during the last decade towards achieving these three inputs has been uneven. The main purpose of this article is to show the health facilities and challenges in West Bengal of India where the problem of providing effective health care services to the majority of its citizens has become an impossible task for …

To Be Or Not To Be (A Parent)? – Not Precisely The Question; The Frozen Embryo Dispute, Yehezkel Margalit

Hezi Margalit

Modern medicine offers a variety of fertility treatments, with the result that in the United States alone, there are more than 400,000 frozen embryos and another 10,000 are frozen every year. Since the rate of divorce in the United States increases exponentially, one can easily imagine how many frozen embryos could become open to litigation. Indeed, the media, the law and the people concerned with the ethical aspects have devoted much attention to this issue. This is because litigation forces the reassessment of many complex issues starting with the appropriate balance between an individual’s legal right to be and not …

Interoperable Electronic Healthcare Record: A Case For Adoption Of A National Standard To Stem The Ongoing Healthcare Crisis, Deth Sao, Amar Gupta, David A. Gantz

Deth Sao

Interoperable electronic health records (EHR) have the capacity to deliver health care at optimal costs and quality in the United States, but current private and public initiatives have delayed nationwide implementation by failing to overcome several obstacles. These obstacles include: widespread reluctance in adopting health information technology (HIT); differing technical and semantic standards for communication between vendor systems; and legal challenges, which are mainly based on liability, privacy, and security concerns. This paper examines these challenges and the inadequacies of current HIT-EHR implementation strategies, questioning in particular the validity of privacy and security-based concerns. A comparison with the U.S. finance …