Law Commons^™

Pandemic As Transboundary Harm: Lessons From The Trail Smelter Arbitration, Russell A. Miller

Scholarly Articles

The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the …

We Shouldn't Need Roe, Carliss Chatman

Scholarly Articles

In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the U.S. Supreme Court, this essay asks whether Roe is needed at all. Decades of state law encroachments have caused Roe to fail to properly protect the right to choose. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the right …

Making An Offer That Can't Be Refused: The Need For Reform In The Rules Governing Informed Consent And Doctor-Patient Agreements, Timothy C. Macdonnell

Scholarly Articles

On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a …

Civil Disobedience In The Face Of Texas’S Abortion Ban, Alexi Pfeffer-Gillett

Scholarly Articles

This Article uses Texas’s abortion ban to demonstrate why civil disobedience is the best strategy against such private-enforcement schemes. It proceeds in three parts. Part I demonstrates that Texas’s private enforcement scheme in fact directly implicates state court officials and potentially state police forces. It then explains why bringing about the involvement of state courts and police through civil disobedience will put SB8 on constitutionally weaker ground. Part II details potential arguments against civil disobedience as a means of challenging private enforcement schemes. This Part also explains why relying on the federal government to challenge such laws will be insufficient. …

Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex …

Emergency Parole Release For Older Parole-Eligible Doc Inmates, David I. Bruck

Scholarly Articles

Professor Bruck writes to Secretary Moran and Chairwoman Bennett to urge them to protect elderly Virginia prison inmates from the risk of death from COVID-19 by granting immediate parole release to as many over-60 parole-eligible prisoners as possible, upon a showing that they are at low risk to re-offend, and have a supportive home to go to once released.

State Prosecutors At The Center Of Mass Imprisonment And Criminal Justice Reform, Nora V. Demleitner

Scholarly Articles

State prosecutors around the country have played a crucial role in mass imprisonment. Little supervision and virtually unsurpassed decision making power have provided them with unrivaled influence over the size, growth, and composition of our criminal justice system. They decide which cases to prosecute, whether to divert a case, whether to offer a plea, and what sentence to recommend. Their impact does not stop at sentencing. They weigh in on alternative dockets, supervision violations, parole release, and even clemency requests. But they are also part of a larger system that constrains them. Funding, judicial limits on their power, and legislative …

Brief Of Amicus Curiae The Washington And Lee University School Of Law Black Lung Clinic In Support Of Petitioners: California V. Texas, Timothy C. Macdonnell

Scholarly Articles

Section 1556 of the Patient Protection and Affordable Care Act (PPACA) makes two major changes to the Black Lung Benefits Act. These changes remove limiting language to make it simpler for disabled miners and their families to establish that they are entitled to federal benefits. First, § 1556(a) reinstates the fifteen-year rebuttable presumption, which presumptively entitles former coal miners to benefits if they have worked over fifteen years underground and have a totally disabling pulmonary disease. The second, § 1556(b), reinstates a continuation of benefits for surviving spouses whose coal-mining spouse was receiving benefits at the time of their death. …

Corporate Law After Hobby Lobby, Lyman P.Q. Johnson, David K. Millon

Scholarly Articles

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P.Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman

Scholarly Articles

In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are “persons” that can “exercise religion,” the Department of Health and Human Services (“HHS”) proposed new rules defining “eligible organizations.” Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and …

Beyond Repeal—A Republican Proposal For Healthcare Reform, Timothy Stoltzfus Jost

Scholarly Articles

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Religious Freedom And Women's Health - Litigation On Contraception, Timothy Stoltzfus Jost

Scholarly Articles

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Self-Insurance For Small Employers Under The Affordable Care Act: Federal And State Regulatory Options, Timothy Stoltzfus Jost, Mark A. Hall

Scholarly Articles

As implementation of the Affordable Care Act reshapes the US health insurance market, state and federal policy makers should be prepared to revisit regulation of stop-loss coverage — a form of reinsurance — for small businesses. Aspects of the reform law could motivate small businesses to self-insure, rather than participate in state-regulated markets either inside or outside the new health insurance exchanges. If younger or healthier groups self-insure, premiums for insured plans will rise, perhaps to an extent that could seriously impair the regulated market. State or federal lawmakers can influence small businesses to participate in the regulated market by …

The Calculus Of Accommodation: Contraception, Abortion, Same-Sex Marriage, And Other Clashes Between Religion And The State, Robin F. Wilson

Scholarly Articles

This Article considers a burning issue in society today— whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate samesex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and …

The Supreme Court And The Future Of Medicaid, Timothy Stoltzfus Jost, Sara Rosenbaum

Scholarly Articles

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The Real Constitutional Problem With The Affordable Care Act, Timothy Stoltzfus Jost

Scholarly Articles

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Loopholes In The Affordable Care Act: Regulatory Gaps And Border Crossing Techniques And How To Address Them, Timothy Stoltzfus Jost

Scholarly Articles

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Oversight Of Marketing Relationships Between Physicians And The Drug And Device Industry: A Comparative Study, Timothy Stoltzfus Jost

Scholarly Articles

Throughout the world, complex mutually-dependent relationships exist between physicians and pharmaceutical and medical device companies. This articlef ocuses on one particulara spect of these relationships--paymentsm ade by drug and device companies to physicians and their organizations and institutions to market drugs and devices. It is widely believed that drug and device company marketing to physicians creates conflicts of interest that corrupt physician judgment and increase the cost of medical care. This article examines first the economic basis of physician/industry relationships that causes conflicts to arise. It next considers the measures that a number of developed countries have taken to respond …

The Death Of Jesse Gelsinger: New Evidence Of The Influence Of Money And Prestige In Human Research, Robin Fretwell Wilson

Scholarly Articles

Ten years ago, Jesse Gelsinger died while participating in a human gene therapy trial at the University of Pennsylvania (“Penn”). His death came to signify the corrosive influence of financial interests in human subjects research. After Jesse's death, the media reported that one researcher. Dr. James Wilson, held shares in a biotech company, Genovo, which stood to gain from the research's outcome — shares that The Wall Street Journal later valued at $13.5 million, although Wilson maintains he did not make nearly this much. At the time Penn authorized Wilson's deal, internal Penn documents implicitly valued Wilson's stake in Genovo …

Health Insurance Exchanges: Legal Issues, Timothy Stoltzfus Jost

Scholarly Articles

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Global Health Care Financing Law: A Useful Concept?, Timothy Stoltzfus Jost

Scholarly Articles

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Is Health Insurance A Bad Idea? The Consumer-Driven Perspective, Timothy Stoltzfus Jost

Scholarly Articles

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Suicide On Campus: The Appropriate Legal Responsibility Of College Personnel, Ann Maclean Massie

Scholarly Articles

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The Massachusetts Health Plan: Public Insurance For The Poor, Private Insurance For The Wealthy, Self-Insurance For The Rest?, Timothy Stoltzfus Jost

Scholarly Articles

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Shifting Risk Of Ruin To Consumers: The Role Of Tax Law In American Health Policy, Timothy Stoltzfus Jost

Scholarly Articles

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The American Right-Wing Policy Agenda, Timothy Stoltzfus Jost

Scholarly Articles

Right-wing health policy is alive and well in the United States. Pro-business and libertarian health policy advocacy groups, generously funded by right-wing foundations (and, in some instances, by the health care industry), produce a continuous stream of press releases, policy-statements, books, articles, and symposia, as well as testimony before legislative and administrative bodies. Their positions are taken very seriously by the American media, who make certain that right-wing policy experts are represented in any discussion of current health policy issues.

Health Courts And Malpractice Claims Adjudication Through Medicare: Some Questions, Timothy Stoltzfus Jost

Scholarly Articles

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Our Broken Health Care System And How To Fix It: An Essay On Health Law And Policy, Timothy Stoltzfus Jost

Scholarly Articles

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The Role Of State Regulation In Consumer-Driven Health Care, Timothy Stoltzfus Jost, Mark A. Hall

Scholarly Articles

The Consumer-directed health care movement has recently been given a major boost by section 223 of the Medicare Modernization Act, which provides federal income tax subsidies for health savings accounts coupled with high deductible health plans. The federal tax subsidy, however, will only be available in states whose program of insurance regulation permits high deductible health plans to exist. The MMA represents, therefore, a new approach to federalism in health insurance - offering tax incentives for states to change their approach to insurance regulation rather than preempting state regulation or imposing federal regulation. To date the states have generally responded …

Consumer-Driven Health Care In South Africa: Lessons From Comparative Health Policy Studies, Timothy Stoltzfus Jost

Scholarly Articles

Consumer-driven health care, based on health savings accounts and high deductible health insurance policies, seems to be the next big thing in U.S. health policy. Long supported by conservative and libertarian advocacy groups, it received a big-boost with the HSA tax subsidy provisions of the Medicare Modernization Act. The question remains, however, whether consumer-driven health care can really bring down health care costs while improving quality and access, as its supporters claim that it will.

This article examines the experience of South Africa, where medical savings accounts have long been available and are widely used. It concludes that South Africa's …