Law Commons^™

Programmers And Forensic Analyses: Accusers Under The Confrontation Clause, Karen Neville

Duke Law & Technology Review

Recent Supreme Court cases involving the Confrontation Clause have strengthened defendants’ right to face their accusers. Bullcoming v. New Mexico explored the question of whether the testimony of the technician who performs a forensic analysis may be substituted by that of another analyst, and the Court held that producing a surrogate witness who was not sufficiently involved in the analysis violates the confrontation right.

The presumption of infallible technology is fading, and courts may soon realize programmers have greater influence over the ultimate outcome of forensic tests than do the technicians who rely on such analytical tools. The confrontation right, …

Apologies In The Healthcare System: From Clinical Medicine To Public Health, Michal Alberstein, Nadav Davidovitch

Law and Contemporary Problems

Alberstein and Davidovitch explore the role of apologies in healthcare systems from a broader perspective. The significance of apology in terms of social solidarity is addressed and the ways in which each apology situation entails a clash between cultural identities are demonstrated. The debate on apology is explored by presenting a public health perspective of apologies following collective traumatic events such as the application of sterilization laws or flawed human experimentations in various settings.

A “Principled Resolution”: The Fulcrum For Bioethics Mediation, Nancy Neveloff Dubler

Law and Contemporary Problems

The concept of a "principled resolution" is the foundation for bioethics mediation. Dubler presents the core bioethical principles that support the creation of principled resolutions as fulcrums for resolving disagreements in the healthcare setting. These disputes may arise among medical providers, between medical providers and patients, or among members of a patient's family and can be managed or resolved by bioethics mediation using the conceptual tool of a principled resolution.

Sherley V. Sebelius: Stem Cells And The Uneasy Interplay Between The Federal Bench And The Lab Bench, Ryan P. O'Quinn

Duke Law & Technology Review

After Barack Obama's election to the presidency, he promised that one of his top priorities in office would be to relieve the restrictions initiated by President George W. Bush on federal funding of embryonic stem cell research. President Obama followed through on his promise, but the celebrations in the nation's research labs were short-lived. Anti-abortion advocates and other scientists working in the field that would allegedly be out-competed in the federal funding arena brought a legal challenge to the new government position. The struggle culminated in August 2010 with a federal district court issuing a preliminary injunction to halt the …

Who Pays? Who Benefits? Unfairness In American Health Care, Clark C. Havighurst, Barak D. Richman

Faculty Scholarship

American-style health insurance greatly amplifies price-gouging opportunities for health care providers, who inflate prices both to enrich themselves and to subsidize and expand the nation’s health care enterprise. To the extent that lower- and middle-income Americans with private health coverage pay premiums that go to support and expand the system, they are subject to an unfair (regressive) “head tax” levied by unaccountable entities for ostensibly public but also private purposes. Lower-income premium payers also often pay for costly health coverage designed to suit the economic interests and values of professional and other elites rather than their own. They also appear …

A Cautious Path Forward On Accountable Care Organizations, Barak D. Richman, Kevin A. Schulman

Faculty Scholarship

The wave of new Accountable Care Organizations (ACOs), spurred by financial incentives in the Affordable Care Act, could become the latest chapter in the steady accumulation of market power by hospitals, health care systems, and physician groups. The main purpose behind forming many ACOs may not be to achieve cost savings but instead to strengthen negotiating power over purchasers in the private sector. This would be an unfortunate sequel to the waves of mergers in the 1990s when health care entities sought to counter market pressure from managed care organizations. The possibility that ACOs might further concentrate health care markets …

The Provider-Monopoly Problem In Health Care, Clark C. Havighurst, Barak D. Richman

Faculty Scholarship

Although federal judges have resisted giving due effect to standard antitrust principles in scrutinizing mergers of nonprofit hospitals, the presence of health insurance makes it especially important to oppose monopoly in health services markets. U.S.-style health insurance gives monopolist providers extraordinary pricing freedom, thus exacerbating monopoly’s usual redistributive effects. Significant allocative inefficiencies - albeit not the kind generally associated with monopoly - also result when the monopolist is a nonprofit hospital. Because it is probably impossible to undo past hospital mergers creating undue market power, we suggest some alternative remedies. One is to apply antitrust rules against "tying" arrangements so …