Law Commons^™

Entrenched Inequity: Health Care In The United States Of America, Jean Connolly Carmalt, Sarah Zaidi, Alicia Ely Yamin

Jean Connolly Carmalt

This article analyzes the U.S. system for delivering health services in terms of the international human rights standards that apply to the human right to health. To that end, the article evaluates whether the health care system provides available, accessible, acceptable, and quality health goods and services. It finds that the United States fails to provide available care because services are insufficient in quantity and not located in reasonable proximity to all communities; that it fails to provide accessible care because of financial barriers to access and overly complicated requirements for access; that it fails to provide acceptable care because …

King Solomon’S Solution To The Disposition Of Embryos: Recognizing A Property Interest And Using Equitable Division, Kansas R. Gooden

Kansas R Gooden

In your family law class, your professors have probably not lectured on the area of embryo disposition in divorce proceedings. Were you aware that courts across the country have ruled that the right not to procreate trumps the right to procreate in these situations? When divorce and IVF combine, it results in a complex legal battle. When a couple that used IVF divorces, who should get the remaining embryos? This article asserts that embryos should be considered property. The elements of ownership, possession, use, and exclusion, otherwise known as the bundle of sticks, are present. American law has taken an …

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin C. Feldman

Robin C Feldman

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of …

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

A Crisis Waiting To Happen: What’S Wrong With Pennsylvania Public Health Law., John A. Bozza

John A Bozza

There are few areas of government enterprise where the need to “get it right” is so critical, as formulating and executing laws affecting the public health. When the government sets out to exercise its police power to control the spread of disease its goal is to accomplish an immensely important practical task. This article is intended to identify those aspects of Pennsylvania's public health law that may be impediments to the government's ability to effectively respond to a public health crisis. It is suggested that by revising and clarifying certain key provisions of statutes and regulations clear decision making at …

Provena Covenant Medical Center And Its Unresolved Tax-Exempt Status - It's Time For The Illinois Supreme Court To Revise The Methodist Old People's Home Test, Joseph J. Hylak-Reinholtz

Joseph J. Hylak-Reinholtz

Not-for-profit hospitals tax exemptions have been challenged by government officials for providing insufficient charity care to needy patients. In Illinois, not-for-profit tax exemptions are analyzed under a test developed by the state Supreme Court in Methodist Old Peoples Home v. Korzen. This comment argues, in light of the Provena litigation and subsequent appeal, that the court must revise its outdated test to reflect the realities of providing health care today in a not-for-profit system.

Hungry For Victory: Why High School Wrestling Coaches Should Not Be Held Liable For Injuries Resulting From Weight Loss, Alexander J. Pal

Alex J Pal

The purpose of this Note is to advocate for the universal application of primary assumption of the risk as a defense to a negligence cause of action involving interscholastic wrestling. Primary assumption of the risk is a defense which infers that a participant in a particular activity knew or should have known of a risk inherent in that activity. If a court deems a plaintiff to have assumed such a risk, they will be barred from recovering in a lawsuit. Jurisdictions are not in agreement in applying this doctrine in a sports setting.

Application of the doctrine in the sport …

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

Michael J. Malinowski

No abstract provided.

The Patient Life: Can Consumers Direct Health Care?, Carl E. Schneider, Mark A. Hall

Mark A Hall

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s health policy watchword. This article evaluates consumerism and the regulatory mechanism …

Regulation With Placebo Effects, Anup Malani

Anup Malani

There is a growing body of empirical evidence supporting the existence of placebo effects in medical contexts and is suggestive of nontrivial placebo effects in non-medical contexts. This paper reviews the literature on placebo effects, examines the implications for four fields of law (drug approval, informed consent law, consumer protection law, and torts) and suggests future areas for research on placebo effects. Specifically, it make the case for altering the drug approval process to account for, if not credit, placebo effects. It suggests allowing evidence of placebo effects as a defense in cases alleging violations of informed consent or false …

Law's Misguided Love Affair With Science, Robin Feldman

Robin C Feldman

The allure of science has always captivated members of the legal profession. Its siren’s song has followed us throughout much of American legal history. We look to science to rescue us from the experience of uncertainty and the discomfort of difficult legal decisions, and we are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide answers to law’s dilemmas, and we are constantly disappointed.

This …

Competition And Relevant Markets In The Pharmaceutical Industry: The Case Of Pah Drugs, Kevin C. Green

Kevin C Green

The nature and extent of competition between different therapies for a given medical condition often is a critical and controversial issue in both antitrust cases and in general strategic analysis in the pharmaceutical industry. The market for pulmonary arterial hypertension (“PAH”) therapies provides an interesting case study for analyzing these issues. An event study analyzing how the stock prices of PAH therapy providers respond to competitive developments sheds light on the nature of competition among different types of therapies. The results support the view that not all drugs for a given medical condition should necessarily be included in the same …

Pharmacy Compounding Of Bioidentical Hormone Replacement Therapy (Bhrt): A Proposed New Approach To Justify Fda Regulation Of These Prescription Drugs, Bruce Patsner

Bruce Patsner M.D., J.D.

No abstract provided.

Biomedical Research And The Law:--Embryonic Stem Cells, Clones And Genes: Science, Law, Politics, And Values, Michael J. Malinowski

Michael J. Malinowski

This article directly addresses the stem cell controversy, but also the broader history and norms regarding the roles of federal and state government in U.S. science research funding.

Is Today The Day We Free Electroconvulsive Therapy?, Mike Jorgensen

Mike Jorgensen

ABSTRACT IS TODAY THE DAY WE FREE ELECTROCONVULSIVE THERAPY? By Mike E Jorgensen Electroconvulsive Therapy, or “ECT,” has become increasingly more popular to treat certain mental illnesses, especially severe depression and pseudo dementia. The stigma it suffered due to prior barbaric type applications in the past are largely historic, and most medical professionals will agree that ECT is safe today, has very minimal side effects, not inherently abusive, and no long- term detriments. Yet, with the increase in popularity and the safe applications, ECT is still treated archaically under the law and the legislative restraints are causing an indigent, elderly …

Restricting Access To Infertility Services: What Is A Justified Limitation On Reproductive Freedom, Crystal K. Liu

Crystal K Liu

The realm of reproductive freedoms has been one that has been heavily restricted in the history of our country. For purposes of this particular article, reproductive freedom refers not only to the ability to procreate but to the ability to be a parent as well. Throughout the history of the United States, these limitations have been epitomized in a variety of forms. These include state sponsored sterilization during the eugenics movement, child protection laws, as well as adoption laws. By exploring limitations that have been enacted, some of which have been repealed and others that continue to be in place, …

Faster, Higher, And Stronger: Why Athletes Should Have The Choice To Use Performance-Enhancing Drugs, Robert J. Bello

Robert J Bello

From: Robert Bello Date: January 28, 2008 RE: Abstract Performance-enhancing drugs can be safely and effectively used when taken in smaller dosages to help athletes perform better. They are outlawed in sports by current legislation due to the adverse effects caused by high dosages and a decades old assumption that those are the typical side effects and usage patterns. The complete ban ignores the benefits of performance-enhancing drugs and creates many problems of its own. A large reason why athletes suffer adverse side effects from steroids is because they take them with little knowledge and without medical supervision. Lacking supervision, …

Regulation Of Pharmacy Benefit Managers: An Economic Analysis Of Regulation And Litigation As Agents Of Health Care Change, Kevin C. Green

Kevin C Green

Pharmacy benefit managers or “PBMs” have come under intense legal and regulatory scrutiny in recent years. Each of the major PBMs has been targeted by public and private litigation including a major ongoing task force comprised of U.S. Attorneys and Attorneys General from twenty states. Moreover, more than 30 bills to regulate PBMs have been introduced in state legislatures since 2002. This paper provides an economic analysis of PBM regulation. I analyze the economic arguments put forward on both sides of the regulation debate and evaluate the existing empirical evidence on PBM conduct in the context of these arguments. I …

Fairness In Health Care: Who Pays? Who Benefits?, Clark C. Havighurst

Clark C Havighurst

Abstract: Lower- and middle-income Americans with private health coverage pay not only to protect their own families’ health but also to support a vast health care enterprise that primarily benefits others. The system is able to finance itself in part because U.S.-style health insurance greatly amplifies price-gouging opportunities for health care firms with true market power; even though the resulting excess profits often cross-subsidize seemingly desirable activities, the substantial cost burden falls ultimately on premium payers like a severely regressive (i.e., unfair) “head tax.” Lower-income premium payers also bear excessive costs for their own health care. For one thing, they …

If You Choose To Go Outside Without An Umbrella While It Is Raining, Expect To Get Wet: Why Insurance Indemnification Of The Tortious Transmission Of Sexually Transmitted Diseases Is Contrary To Public Policy, Megan L. Johnson

Megan L Johnson

As last reported by the Centers for Disease Control and Prevention in 2005, at least nineteen million people will contract a sexually transmitted disease (STD) annually, costing the United States $1.4 billion a year. Many victims will contract a disease from someone who knew or should have known that he or she was a disease-carrier, and thus the transmission could have been avoided with proper notification and protection or abstinence.

The STD epidemic has led to an increase in litigation over STD transmission and insurance indemnification of the damages. Insured tortfeasors who transmit STDs turn to their insurance policies for …

Analysis Of Indiana V. Edwards (2008), Andrew S. Mansfield

Andrew S Mansfield

The reasoning of the Supreme Court in Indiana v. Edwards, holding that a State could force a defendant to proceed to trial with appointed counsel instead of allowing him to represent himself, is reviewed. The holding centers on the mental capacity of the individual waiving counsel. A review of the amicus curiae brief filed by the APA in Indiana v. Edwards indicates that the brief had a significant impact on the decision. The arguments concerning Godinez and the non-unitary nature of mental competency in the decision largely track the arguments made by the APA in its brief. The structure of …

Erisa, Agency Costs, And The Future Of Health Care In The United States, Brendan Maher, John Bronsteen, Peter Stris

Brendan Maher

No abstract provided.

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

The Right To Die With Dignity: An Argument In Ethics And Law, Raphael Cohen-Almagor

raphael cohen-almagor

We face a dilemma. Suppose there is a person who suffers great pain and wants to die. Those who believe life is intrinsically valuable object to taking life and to taking any action on the person’s desire because the end of life is something granted only to nature, and is not a decision that is incumbent on human beings. However, this objection ignores the autonomy of the agent’s concerns, because she might say: “I would like to die. I would rather die in these circumstances because I don’t feel that I am adding anything just by surviving.” Can life be …

The Holocaust, Museum Ethics, And Legalism, Jennifer Kreder

Jennifer Kreder

The attached article is a provocative analysis of the “Holocaust art movement.” The movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims refused by the Auschwitz-Birkenau State Museum: One to recover a suitcase stolen from a murdered man, and the other to recover watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes uncomplicated by the monetary issues in many of the …

Institutes Of Higher Education, Safety Swords, And Privacy Shields: Reconciling Ferpa And The Common Law, Stephanie D. Humphries

Stephanie D Humphries

In light of the Virginia Tech shootings, this Note argues that both FERPA and the common law contain internal tensions regarding safety and privacy that neither Congress nor the courts have adequately reconciled, and that important discrepancies regarding information sharing exist between IHEs' practices, the common law's demands, and FERPA's limitations.

Part I provides background on FERPA and argues that FERPA's emergency exception is too narrow and confusing, so that IHEs default to the nondisclosure option rather than disclosing information to third parties, such as parents, when students threaten to harm themselves or others. At the same time, FERPA's tax …

Informed Consent Or Institutionalized Eugenics? How The Medical Profession Encourages Abortion Of Fetuses With Down Syndrome, Darrin P. Dixon

Darrin P Dixon

ABSTRACT OF “Informed Consent or Institutionalized Eugenics? How the Medical Profession Encourages Abortion of Fetuses with Down Syndrome.”

Women lack choice in their prenatal decisions because of societal pressures to have “normal” children, a negative view of persons with disabilities by many in society, a fear of legal liability by those in the medical community, the lack of “true” informed consent before undergoing genetic testing, and the failure of many in the medical community to address patients in a non-directive manner. Moreover, medical professionals fail to communicate correct and unbiased information before and during the decision making process. This paper …

Built In Obsolescence: The Coming End To The Abortion Debate, Vernellia R. Randall, Tshaka C. Randall

Vernellia R. Randall

The current legal and political dispute is grounded in the misconception that the decision to have an abortion is one decision, a decision to terminate a fetus. In fact, in choosing an abortion, a woman is actually making two distinct choices: first, she is choosing to terminate her pregnancy, that is, remove the fetus from her body; and, second, she is choosing to terminate the fetus. Currently, a woman’s decision to remove the fetus from her body (the “autonomy decision”) is necessarily a medical decision to terminate the fetus (the “reproductive decision”). The current argument in favor of legalized abortion …

Universal Health Care In Massachusetts: Setting The Standard For National Reform, Mary Ann Chirba

Mary Ann Chirba

No abstract provided.