Law Commons^™

You Take The Embryos But I Get The House (And The Business): Recent Trends In Awards Involving Embryos Upon Divorce, Mark Strasser

Mark Strasser

Various state courts have been asked to decide who should have control of remaining frozen embryos upon divorce. Different models have been proposed, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring both parties to agree before implantation can take place. This article discusses some of these models, concluding both that the enforcement of the initial agreement model is preferable to the others proposed and that one of the most popular current models--the contemporaneous consent model—is a public policy disaster that should be repudiated at the earliest opportunity.

Smoking Out The Impact Of Tobacco-Related Decisions On Public Health Law, Micah Berman

Micah Berman

This article seeks to uncover and analyze the role that tobacco-related litigation has played in the evolution of public health law doctrine. Tobacco is a product – and public health problem – unlike any other. It is the only legal consumable product that kills approximately one-half of the people who consume it, and it cannot be used safely in moderation. These and other characteristics make tobacco use a highly unusual public health issue, and therefore courts addressing tobacco-related litigation have often streched or distorted precedents in order to accommodate the unique exigencies of such cases. In turn, these decisions have …

Between Hope And Evil: Reframing Disability Allowances, Sagit Mor

Sagit Mor

The paper identifies and traces the roots of a fundamental tension that underlies disability politics with regard to disability allowances: are cash benefits an archaic and outdated form of assistance to disabled people, or are they still a relevant mode of response to systematic marginalization and exclusion? Based on a field study of the Israeli disability community the paper shows that while disability rights advocates tend to reject disability allowances as fundamentally wrong and to support the transformation of society's social structures, welfare activists tend to view disability allowances as responding to the most pressing needs of poor disabled people. …

Toward A Distributive Commons In Patent Law, Peter Lee

Peter Lee

While patents provide incentives to invent and develop new inventions, they can constrain access to vital health technologies such as medicines, diagnostics, and nutritional innovations. These access constraints can severely compromise human health, particularly for low-income populations, and have elicited severe criticism. Against this seemingly intractable background, this Article explores methods for integrating distributive values in the patent system while remaining sensitive to property rights and private ordering. Rather than look inward to existing patent doctrine, this Article finds solutions in the political economy of life sciences research. In particular, this Article argues that public institutions, which contribute enormous amounts …

Dialogue With A Neurosurgeon: Toward A Dépeçage Approach To Achieve Tort Reform And Preserve Corrective Justice In Medical Malpractice Cases, Jeffrey A. Van Detta

Jeffrey A. Van Detta

comprised of a dialogue between me, a law professor who teaches torts among a wide array of subjects, and an orthopedic neurosurgeon, who also happens to have been one of my torts students. Our objective is to focus our tort-reform analysis on common errors that occur in complex neurosurgery. We seek to provide a new paradigm both for measuring the standard of care in such malpractice cases and for adjudicating those cases. The dialogue is used as the basis for creating what I call a Dépeçage Model For Classification Of Errors And Resolution Techniques For The Medical Malpractice Claim Arising …

Dialogue With A Neurosurgeon: Toward A Dépeçage Approach To Achieve Tort Reform And Preserve Corrective Justice In Medical Malpractice Cases, Jeffrey A. Van Detta

Jeffrey A. Van Detta

This article is comprised of a dialogue between me, a law professor who teaches torts among a wide array of subjects, and an orthopedic neurosurgeon, who also happens to have been one of my torts students. Our objective is to focus our tort-reform analysis on common errors that occur in complex neurosurgery. We seek to provide a new paradigm both for measuring the standard of care in such malpractice cases and for adjudicating those cases. The dialogue is used as the basis for creating what I call a Dépeçage Model For Classification Of Errors And Resolution Techniques For The Medical …

Public Health Law For A Brave New World: Book Review: Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, Elizabeth A. Weeks

Elizabeth A. Weeks

This is book review of Lawrence O. Gostin’s new edition of Public Health Law: Power, Duty, Restraint (University of California Press, Berkeley, California, 2d ed., 2008). A review of a second edition of a book may be somewhat unusual as subsequent editions of already published works typically do not break new ground. But this book is different. Gostin’s first edition, published in 2000, established and defined the modern field of public health law. The revised and expanded second edition emerges in the post-9/11, post-Katrina, post-Bush world. Gostin now seeks to apply public health paradigms to social problems beyond the field’s …

Substance Abuse In America: Then And Now, Edward Perez

Edward Perez

The purpose of this paper is to review drug diversion from one of the first national drug diversion programs in the country, Treatment Alternatives to Street Crime (TASC) which commenced in the early 1970's to a contempoary version referred to as The Drug Courts. One of the authors, Visiting Professor Edward Perez, Uiversity of La Verne, College of Law was personally involved with a test project in San Diego County, CA. in 1974. The paper reviews the success of such programs, the law associated with drug diversion, the controversy surrounding federal sentencing guidelines for drug crimes and personal interviews with …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

The Costs Of Multiple Gestation Pregnancies In Assisted Reproduction, Urska Velikonja

Urska Velikonja

The United States, unlike most developed countries, does not regulate its fertility industry. Rather, it has vested control over the industry to professional organizations and to market forces. While lack of regulation has produced a vibrant market for ART services, it has also produced an undesirable consequence: a high rate of multiple gestation pregnancies. In this article I summarize the data on the medical, psychological, and financial costs associated with multiple pregnancies to the parents, the children, and the American society. I suggest that the current U.S. regulatory regime has not only failed to address these costs as they surfaced, …

Gene Patents And The Product Of Nature Doctrine, John M. Conley

Faculty Publications

No abstract provided.

Respecting, Rather Than Reacting To, Race In Biomedical Research: A Response To Professors Caulfield And Mwaria, Michael J. Malinowski

Journal Articles

This Commentary is part of a colloquy on race-based genetics research.

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

Journal Articles

No abstract provided.

The Nigerian Social Health Insurance System And The Challenges Of Access To Health Care: An Antidote Or A White Elephant?, Obiajulu Nnamuchi

Obiajulu Nnamuchi

This paper is an excursion into the operation of the recently launched National Health Insurance Scheme of Nigeria. Its primary task is to determine whether social health insurance in Nigeria, as expressed in the statute establishing the scheme, has prospects for actualizing its promise of, inter alia, ensuring access to affordable health care for every Nigerian. To make this determination, the paper critically analyzes key components of the scheme, focusing on the different actors and issues, the interplay of which is crucial to the scheme's successful implementation. Regrettably, the depth and breadth of the analysis are somewhat constrained by the …

"Let's Do The Time Warp Again": Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris

Grant H Morris

Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients’ interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the “paternalistic attitude” …

Whether The Health Insurance Portability Accountability Act Has Become Obsolete In The Nation’S Movement Towards Health Information Technology?, Radhika Vemula

Radhika Vemula

Information technology promises many benefits to the health care sector by improving quality and lowering the costs of health care. However, the prospect of storing health information in electronic form raises concerns about patient privacy and data security. Although information technology allows the use of advanced technology to limit access to health information, it also introduces new vulnerabilities, such as access by unauthorized users. Unless proper controls and adequate laws are in place, health care organizations may be reluctant to adopt health information technology and patients reluctant to share information, undermining the provision of care. This paper outlines the evolution …

"Appropriate Equitable Relief" In Wal-Mart V. Shank: Justice For Whom?, Andrew H. Koslow

Andrew Koslow

Deborah Shank suffered severe, disabling injuries in a 2000 auto accident. She received a settlement from the trucking company involved in the accident that amounted to only a small fraction of the millions dollars in damages that she suffered. To make things even worse, Ms. Shank’s health plan sued her under ERISA section 502(a)(3) for reimbursement of the medical bills it paid on her behalf and won, taking the entire amount of the settlement. This article examines the tension between the relevant ERISA provision and reimbursement clauses found in health plan enrollment contracts, and suggests that the courts’ interpretation of …

The Cost-Shifting Consequences Of Failed Managed Care Regulation: Some Lessons From Pennsylvania’S Experience With Addiction Treatment, Greg Heller

Greg Heller

When managed care companies fail to pay for medical treatment, the costs of treatment are sometimes shifted to the public. This phenomenon is particularly common in the area of addiction treatment, because the incentives and opportunities for cost shifting are so great. This article sets forth the results of an empirical analysis that examines the extent of cost shifting for addiction treatment in Pennsylvania. Pennsylvania has a strong law mandating coverage for addiction treatment, and much of the cost shifting was in violation of Pennsylvania law. This behavior was almost entirely missed by regulators. The article explores these regulatory failures, …

Overcoming Fears Of Erisa Preemption To Cover The Working Uninsured: Lessons Learned From Hawaii, California, And Massachusetts, Angela Tokuda

Angela Tokuda

As the debate for national health care reform continues to evolve, the question remains to what extent will national reform leave room to preserve state-level experimentation, especially in light of ERISA (Employee Retirement Income Security Act) preemption. ERISA preemption has remained a formidable obstacle to state efforts. However, three states, Hawaii, California and Massachusetts, have been successful in expanding health insurance coverage at the local level. Although each state utilizes different objectives to cover their uninsured population, each faces the same threat of ERISA preemption. Nonetheless, these states have come up with unique ways to avoid ERISA preemption. This paper …

“Balancing Corporate Governance, Patients’ Interests, And Physicians’ Fiduciary Roles In The Healthcare Arena – What Would The Reasonable Person Do?”., Rachel V. Rose

rachel v rose

Oversight begins with disclosure. Part I of this article addresses corporate governance in the context of financial crisis and Sarbanes Oxley. Part II highlights both the role of pharmaceutical/medical device companies in compensating physicians for the time away from their practices for educational purposes, and the consequences of physician business relationships on the fiduciary duty owed by physicians to patients. The significance of voluntary compliance programs is set forth in Part III. Present and proposed policies for the oversight of business relationships between physicians and medical device/pharmaceutical companies are discussed in Part IV. Finally, Part V concludes that a “reasonable …

Cutting Funding For Oral Contraceptives: Violation Of Equal Protection Rights And The Disparate Impact On Women's Healthcare, Rachel V. Rose

rachel v rose

Cutting funding for oral contraceptives has far reaching implications for women, which include adverse impacts on women’s health, negative economic impacts on society, and constitutional violations. In a country whose governmental health plans (Medicare and Medicaid) reimburse men’s costs for Viagra® , it is hardly appropriate to deny women access to prescribed oral contraceptives that have traditionally been defined as supplementary services falling under the umbrella of primary care. Because of the wording of a provision, some contend that non-profit clinics and campus health centers can no longer offer oral contraceptives at reduced rates. This article will show how decreasing …

An Empirical Examination Of The Factors Associated With The Commutation Of State Death Row Prisoners’ Sentences Between 1986 And 2005, John D. Kraemer

John D Kraemer

Commutation is usually a death row prisoner’s last hope of evading his or her capital sentence. However, unlike many other stages of the death penalty process, little research focuses on the factors that affect decisions to commute or allow a death sentence to go forward, and that which has been conducted utilizes data which is now nearly a decade old. This paper seeks to examine personal and demographic factors associated with commutation decisions and to resolve incon- sistent findings in the prior research. Using the statistical method of multiple logistic regression, this paper finds statistically significant disparities in the odds …

Screening Of Prisoners For Hiv: Public Health, Legal, And Ethical Implications, John D. Kraemer

John D Kraemer

Inmates are disproportionately impacted by HIV/AIDS in the United States. As a result, correctional health systems have often screened prisoners -- either at entry or while incarcerated -- for HIV. This paper assesses the likely public health impact of such programs and concludes that they can be beneficial so long as screening programs are linked with adequate prevention and treatment. It also assesses the conditions under which screening programs comply with or violate United States constitutional law and ethical norms.

Saving The Leftovers: Models For Banking Cord Blood Stem Cells, Kimberly J. Cogdell

Kimberly J Cogdell

This article draws an interesting comparison between material placed on the curb to be collected as garbage and the material (cord blood stem cells) removed during childbirth to be discarded by the hospital. The comparison is made based on the California v. Greenwood decision and deals with expectations of privacy in materials placed on the curbside as trash; search and seizure of materials obtained from a warrantless search and whether the use of this material violated the Fourth Amendment.

The use of embryonic stem cells is a highly publicized, politically-charged topic which implicates many ethical, legal and moral issues. But …

I’M Interested In Health Law—Now Where Can I Get A Job?, Jennifer Bard

Jennifer Bard

Health care is a trillion-dollar industry that has grown exponentially over the past ten years with very little sign of slowing. The demand of legal services has tracked the growth of the industry. As a result, individuals in the health care field are increasingly thinking of expanding their career opportunities by getting law degrees and students already enrolled in law schools are interested in pursuing opportunities within health law. This article is intended to serve as a guide to both groups about the wide variety of job opportunities for lawyers within health care, where to find these jobs and how …

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Journal Articles

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

At The End Of The Clinical Trial: Does Access To Investigational Technology End As Well?, Richard S. Saver

Faculty Publications

No abstract provided.

Law, Society, And Medical Malpractice Litigation In Japan, Eric Feldman

All Faculty Scholarship

No abstract provided.

Legal Issues, Mary Ann Chirba

Mary Ann Chirba

No abstract provided.

Organophosphates, Friend And Foe: The Promise Of Medical Monitoring For Farm Workers And Their Families, Gabriel Eckstein, Adriane Busby

Gabriel Eckstein

Millions of farm workers nation-wide who load, mix and/or apply pesticides are exposed to incredible amounts of pesticides on a daily basis. Various inefficiencies and inconsistencies in the regulatory system – including insufficient illness reporting data systems, lack of regulatory compliance and enforcement, and inadequate data and information on the chronic effects of exposure and overexposure to various pesticides – increase the likelihood that these workers will continue to be exposed to dangerous amounts of pesticides.

This article assesses the existing mechanisms designed to protect farm workers from occupational exposure to pesticides and identifies and analyzes some of the shortcomings …