Law Commons^™

Legal Methodologies For Maximizing Freedom Of Scientific Research, Charles Baron

Charles H. Baron

No abstract provided.

Medical Malpractice Reform In Three Southern States, Leonard J. Nelson, Michael A. Morrisey, Meredith L. Kilgore

Leonard J. Nelson III

Louisiana, Alabama, and Mississippi have adopted medical malpractice reform legislation in response to the three crises in medical liability insurance. In 1975, Louisiana adopted damages caps, created a patient compensation fund, and mandated the submission of claims to screening panels. In 1987, Alabama adopted damages caps and modified the collateral source rule, but these reforms were declared unconstitutional in the 1990s. In 2002, Mississippi adopted a damages cap. In this article we review the effect of these reforms on the malpractice environment in each state. We find that based on the total value of paid claims and paid claims per …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

A Philosophy Of Privitization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor B. Sorresso

Eleanor B Sorresso

Over the past two decades, managed care coverage programs have grown to dominate the private health insurance market. With the Balanced Budget Act of 1997 and the Medicare Modernization Act of 2003, managed care programs are now expanding to envelop our nation’s Medicare program as well. Proponents have based this expansion primarily on the premise that market economics provides a more efficient paradigm under which to regulate available health care resources. However, this premise of market efficiency proves problematic in the health care arena because it disregards issues of societal responsibility and the risk of socioeconomic stratification in the allocation …

Advancing Civil Rights, The Next Generation: The Genetic Information Nondiscrimination Act Of 2007 And Beyond, Morse Tan

Morse Tan Esq.

On the leading edge of civil rights law and bioethics/healthcare law, this Article analyzes the Genetic Information Nondiscrimination Act (GINA) of 2007, which would extend important protection against discrimination in health insurance and employment. GINA would also bolster genetic research by freeing research subjects from the threat of genetic discrimination. This Article demonstrates how GINA would further protect this society against the rising dangers of genetic discrimination beyond already existing federal and state law.

The Risky Business Of Lifestyle Genetic Testing: Protecting Against Harmful Disclosure Of Genetic Information, Gabrielle Z. Kohlmeier

Gabrielle Z Kohlmeier

The technological and scientific advances of nutrigenetic testing imply that the future is here, but unfortunately the legal protections are not. Nutrigenetics—the newly developing science correlating diet and genotypes—promises an easier way to escape the consequences of unhealthy lifestyles. And a large contingent of Americans, including cost-conscious employers and health insurers, are seeking such high-tech solutions. Web-based nutrigenetic testing, purportedly offering custom-tailored plans without a trip to the doctor’s office, thus captures a wide audience. The enthusiasm for nutrigenetics may obfuscate the unusual problems surrounding protection of genetic information, particularly in a market context. Upon providing genetic material, an individual …

Overriding Mental Health Treatment Refusals: How Much Process Is "Due"?, Samuel Jan Brakel

Samuel Jan Brakel

No abstract provided.

Green Medicine: Using Lessons From Tort Law And Environmental Law To Hold Pharmaceutical Manufacturers And Authorized Distributors Liable For Injuries Caused By Counterfeit Drugs, Stephanie Feldman Aleong

Stephanie Feldman Aleong

Counterfeit and adulterated prescription drugs have caused serious harm to consumers when these tainted products have easily permeated the legitimate marketplace over the last decades. Criminals and other actors introduce fake, adulterated, expired and foreign drugs into the drug distribution network which puts unsafe medicine into the hands of innocent consumers.

Due to the FDA’s identification of the dramatic rise in counterfeit drug investigations, in June of 2006, the FDA finally lifted the nearly twenty-year-old stay on requiring pedigree documentation, an actual history of the distribution transactions of a medicine before reaching a dispensing pharmacy, only to find that a …

"Simplify You, Classify You": Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Michael L Perlin

Abstract:

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

1. The need to insure that all children receive adequate education

2. The need to insure that the cure is not worse than the illness (that is, …

The Concept Of Hospital Ethics Committee And A Turkish Example: Ege University Hospital Ethics Committee, Cagatay Ustun, Inci Hot

CAGATAY USTUN Assc. Prof. Dr.

During the second half of the 20th century, the idea of establishing hospital ethics committees emerged as a result of technological developments in the medical field, of new approaches towards patients’ rights, and of facts which were unacceptable from medical, judicial and moral perspectives. Among the goals of hospital ethics committees which begun to be established after the 1970’s are consulting, educating hospital personnel, patients and patients’ relatives, as well as building a health policy for the health institution. It is important to note, however, that the decisions of such committees are only in the nature of recommendations. In Turkey, …

The Impact Of Regional Trade Areas On International Intellectual Property Rights, Brian Cimbolic

Brian Cimbolic

This article seeks to explore the impact of Customs Unions and Free Trade Areas (Regional Trade Areas, or “RTAs”) on both the developing world’s intellectual property concerns and on the international trade principle of most favored nation status. By examining various RTAs such as the North American Free Trade Agreement (“NAFTA”) and the upcoming Free Trade Agreement of the Americas (the “FTAA”), along with several smaller RTAs, this paper seeks to show that RTAs are undermining the principles of the International Trade Agreements they are a supposed to be a part of by refusing to apply MFN principles and by …

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Overriding Mental Health Treatment Refusals: How Much Process Is "Due"?, Samuel Jan Brakel

Samuel Jan Brakel

No abstract provided.

Access To Assisted Reproductive Technologies, Susan B. Apel

Susan B. Apel

Abstract: The use of assisted reproductive technologies (ART) has raised questions about patient access to these new means of reproduction. This article explores existing legal constraints on access, primarily within the United States, including federal and state legislation and professional regulation. The article also raises questions as to the appropriate role and form of law in resolving disputes over patient access. The author acknowledges the difficulties in the drafting and use of positive, substantive law, and concludes by suggesting that legal concepts embedded in legal procedure may be useful in the resolution of access disputes.

Medical Futility, Patient Autonomy, And Professional Integrity: Finding The Appropriate Balance, Amir Halevy

Amir Halevy M.D.

This article focuses on the “medical futility” section of the Texas Advance Directives Act. Briefly, the concept of medical futility is that under certain circumstances, physicians and health care institutions have no legal or moral duty to provide medically inappropriate or futile treatment even when demanded by patients or their families. Given the ongoing national debate about health care costs and access to care issues, this subject is integral to any potential resolution. The Texas futility mechanism initially received national attention as a model statute that created a process-based resolution mechanism to resolve these complex cases. More recently, however, the …

Motorcycle Helmet Laws: The Facts, What Can Be Done To Jump-Start Helmet Use, And Ways To Cap The Damages, Melissa Neiman

Melissa Neiman, M.D., J.D.

No abstract provided.

Protecting Professional Boxers: Federal Regulations With More Punch, Melissa Neiman

Melissa Neiman, M.D., J.D.

No abstract provided.

The Benghazi Six: International Medical Neutrality In Times Of War And Peace, Johanna Michaels Kreisel

Johanna Michaels Kreisel

This comment evaluates the legal protections and liabilities available to medical personnel in international conflict and non-conflict situations. This comment focuses on the plight of the six foreign medical workers who are currently on death row for allegedly causing the deliberate HIV infection in 426 Libyan children. This comment analyzes the legal recourse available to medical workers in international humanitarian and human rights law under the International Covenant on Political and Civil Rights and the Convention for the Protection of Migrant Workers and provide future recommendations to ensure that medical works have adequate protections and clear obligations under international law.

Like A Virgin? Virginity Testing As Hiv/Aids Prevention: Human Rights Universalism And Cultural Relativism Revisited, Erika R. George

Erika R. George

I explore the tensions between gender equality, personal autonomy and evolving cultural practices when a traditional practice that arguably violates universal international human rights and domestic constitutional norms also enjoys strong support—as is the case with virginity testing in South Africa. The practice of virginity testing has reemerged, advanced not only as a return to tradition but also as an HIV/AIDS prevention strategy. I examine the debates about virginity testing and its recent prohibition by the government in order to more fully consider the limitations of liberalism as the foundation for human rights when operating within a pluralistic cultural context …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

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 …

Dealing With The Reality Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research , Michael J. Malinowski

Michael J. Malinowski

This article challenges proposals to apply law to greatly constrain if not wholly prohibit race-based genetics research with arguments based in bioethics, research pragmatism, and genetic science. The article concludes that proposals to stretch U.S. antidiscrimination jurisprudence to regulate away race and ethnicity in genetics research are misguided at best.

Sample Prescription Drugs And The "Learned Intermediary": Liability Without Preemption, Susan Poser

Susan Poser

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …