Law Commons^™

Toward A Mature Doctrine Of Informed Consent: Lessons From A Comparative Law Analysis, John G. Culhane, King-Jean Wu, Oluyomi Faparusi, Eric J. Juray

John G. Culhane

This article undertakes a comparative, critical evaluation of the law of informed consent as it has developed in several nations (the U.S., Taiwan, Britain, and Canada) over the past several decades. It argues for extending the doctrine to cover all cases in which physicians and their patients discuss appropriate care (including prescription drugs), and presents a modified subjective approach to causation, based on the Canadian approach, as the model most consistent with the fundamental tenets of the doctrine.

Announcing Remedies For Medical Injury: A Proposal For Medical Liability Reform Based On The Patient Protection And Affordable Care Act, Steven Raper

Steven E Raper MD

Recently reaffirmed, the Patient Protection and Affordable Care Act holds the promise of sweeping change in many critical aspects of the United States’ system of delivering health care. Indeed, medical liability reform is embedded into the DNA of the Obama presidency. Further, a Sense of the Senate statement raised a number of concerns over the current medical malpractice regime. These concerns led to the enactment of a small but conceptually important provision of the Affordable Care Act. Congress intends, however, to allow the states to develop liability reform through the allocation of 50 million dollars for State Demonstration Projects.

From …

Road Rules And Rights: The Irreconcilable Pursuits Of Adolescent Life, Liberty, . . . And Licensure, Vivian E. Hamilton

Vivian E. Hamilton

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

Employers United: An Empirical Analysis Of Corporate Political Speech In The Wake Of The Affordable Care Act, Elizabeth Weeks Leonard, Susan Scholz, Raquel Meyer Alexander

Elizabeth A. Weeks

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discrete tax-law change in the ACA. Congressional and Administration officials accused the firms of being “irresponsible” and using “big numbers to exaggerate the health reform's …

Saving Small Employer Health Insurance, Daniel Benjamin Schwarcz

Daniel Benjamin Schwarcz

Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order …

When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff

Abigail R. Moncrieff

There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to …

Stigma And The Emerging Law Of Obesity Control, Lindsay F. Wiley

Lindsay Wiley

Scholars have proposed a wide range of legal tools for fighting the obesity epidemic by altering the obesigenic environment: zoning regulations to create more physically active communities; taxes, bans and subsidies to create a healthier food marketplace; and disclosure requirements and advertising restrictions to alter the information environment. As policymakers take up the war on obesity, however, these promising environmental interventions are losing out to cheaper and more politically palatable interventions that target obese individuals in an effort to convince them to lose weight. For example, recent reforms have encouraged employers and insurance companies to penalize obese people through higher …

Does The Individual Mandate Coerce?, Sergio Campos, Raphael Boleslavsky

Sergio J. Campos

The Patient Protection and Affordable Care Act includes an individual mandate which penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This Essay questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …

The Lawlessness Of Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …

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 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 …

The Health Care Cases And The New Meaning Of Commandeering, Bradley Joondeph

Bradley W. Joondeph

The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive, the Court has re-conceptualized what constitutes a …

Not Getting Hired Because You Are Obese, But Not Getting Fired Because You Are Obese: How The New Changes To The Ada Have Set A Double Standard, And What’S To Prevent Companies From Trimming The Fat At The Office, Joshua Forman

Joshua Benjamin Forman

This article examines how the recent amendments to the Americans with Disabilities Act fail to afford people who are classified as obese the protection against employment discrimination they deserve. Part I outlines the development of the history of protections afforded to individuals who are disabled. Part II concentrates on obesity as a medical condition and the way in which society perceives those who are obese. Part III focuses on whether or not obesity can be classified as a disability under the ADAAA. Part IV provides a pragmatic solution, which identifies safeguards for an obese person at each level of the …

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Michael L. Perlin

Michael L Perlin

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration

Abstract

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the …

Regulating Data Mining Post-Sorrell: Using Hipaa To Restrict Marketing Uses Of Patients' Private Medical Information, Beverly Cohen

Beverly Cohen

On June 23, 2011, the United States Supreme Court in Sorrell v. IMS Health Inc determined that Vermont's law prohibiting pharmacies from selling prescription data to "data mining" companies violated the Free Speech Clause of the First Amendment. Data miners purchased the prescription data to aggregate and re-sell it to pharmacy manufacturers for marketing purposes. Drug manufacturers used the information to target physicians for face-to-face visits ("detailing") by salesmen to convince the physicians to prescribe more of the manufacturers' costly brand-name drugs. The prescription information purchased from the data miners enabled the manufacturers to target particular physicians who were not …

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51

Gabriel O Aitsebaomo

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

Legal Impediments To The Diffusion Of Telemedicine, Diane E. Hoffmann, Virginia Rowthorn

Diane Hoffmann

No abstract provided.

The Individual Mandate Tax Penalty, Jeffrey Kahn

Jeffrey H Kahn

In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court recently heard oral arguments on the constitutionality of that provision in particular which, if found unconstitutional, could lead the Court to strike down the entire reform legislation. Whichever way the Court rules, fundamental questions will remain. This article addresses the question of whether the use …

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist's Crystal Ball, Donald Stone

Donald H. Stone

This article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting and the 2011 shooting of Congresswoman Giffords have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This article will explore the misconception about the role medication and inpatient civil commitments should play in prevention of dangerousness and undermine the belief …

Life Is A Highway: Severability Of The Affordable Care Act, Mary Ann Chirba, Alice Noble

Mary Ann Chirba

No abstract provided.

On The Individual Mandate Argument: Beyond Uncompensated Care, Mary Ann Chirba, Alice Noble

Mary Ann Chirba

No abstract provided.

Individual Mandate Is Constitutional, Leslie Henry, Maxwell Stearns

Maxwell L. Stearns

Supreme Court should find that key aspect of Obama's signature law is a legitimate exercise of Commerce Clause power.

Individual Mandate Is Constitutional, Leslie Henry, Maxwell Stearns

Leslie Meltzer Henry

Supreme Court should find that key aspect of Obama's signature law is a legitimate exercise of Commerce Clause power.

Agencies In Crisis?: An Examination Of State And Federal Agency Emergency Powers, Babette Boliek

Babette Boliek

That state and federal agencies have emergency powers, is well known. Much less is known about the process and circumstances under which these powers are exercised—subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and “deossification” of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this article presents new empirical …

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Nadia N. Sawicki

One of the most enduring debates at the intersection of administrative and tort law focuses on the challenge of identifying the most effective means of ensuring consumer safety. In some circumstances, standard-setting administrative regulations may be sufficient to protect consumers from harm while at the same supporting the growth of valuable industries. In other circumstances, regulation may need to be supplemented by a complementary tort regime that fills the compensation gap when consumers suffer injury. The discussion among policymakers and legal scholars about which system to favor is continually playing out in a variety of arenas, most notably in the …

Opening Doors: Preventing Youth Homelessness Through Housing And Education Collaboration, Courtney L. Anderson

Courtney L Anderson

This article will contribute to the general literature on homelessness by recommending that permanent supportive housing units for homeless children, youth and families provide education services in order to prevent and end homelessness among families, youth and children. I will explain how the legal framework for such housing requires a broad interpretation of the McKinney-Vento Homeless Assistance Act, and assert that federal programs provide a foundation for the creation of such housing. Identifying and educating homeless youth is particularly challenging as the majority of homeless youth live on the streets or in the homes of others, suffer from serious mental …

Embryo Disposition Agreements: The Effect Of Personal Autonomy, Constitutional Rights, And Public Policy On Enforceability, Damages, And Remedies, Nicholas Seger

Nicholas D. Seger

No abstract provided.

Patent Chokepoints In The Influenza-Related Medicines Industry: Can Patent Pools Provide Balanced Access?, Dana Beldiman

Dana Beldiman

This paper illustrates the fact that when biological materials are used for development of pharmaceuticals, the patent system may function sub-optimally and may give rise to patent “thickets” and “anti-commons” which prevent commercialization of adequate amounts of product. These circumstances include inventions based on the same biological resource, patenting of largely similar functionalities, gene patents and patents that are narrow and fragmented. As a result, in order to obtain freedom to operate, drug developers must license-in multiple patents, often from competitors. This situation gives rise to uncertainty and is prone to hold-outs. The number of players actually developing drugs is …

Global Health Justice: Towards A Framework Convention On Global Health—A Transformative Agenda For Global Governance For Health, Lawrence O. Gostin

Lawrence O. Gostin

Global health inequities cause 20 million deaths annually, mostly among the world’s poor. Yet, international law to reduce these inequalities is sparse. We propose a new global health treaty, a Framework Convention on Global Health (FCGH), based on the human right to health. Already endorsed by the UN Secretary-General, the FCGH would re-imagine global governance for health, offering a new post-Millennium Development Goals vision. A global coalition of civil society and academics has formed an international campaign to advocate for an FCGH—the Joint Action and Learning Initiative (JALI). This article provides the first systematic account of the goals and justifications …

Global Health Justice: Towards A Framework Convention On Global Health—A Transformative Agenda For Global Governance For Health, Lawrence O. Gostin

Lawrence O. Gostin

Global health inequities cause 20 million deaths annually, mostly among the world’s poor. Yet, international law to reduce these inequalities is sparse. We propose a new global health treaty, a Framework Convention on Global Health (FCGH), based on the human right to health. Already endorsed by the UN Secretary-General, the FCGH would re-imagine global governance for health, offering a new post-Millennium Development Goals vision. A global coalition of civil society and academics has formed an international campaign to advocate for an FCGH—the Joint Action and Learning Initiative (JALI). This article provides the first systematic account of the goals and justifications …