Health Law and Policy Commons^™

The Experiential Future Of The Law, Adam Kolber

Faculty Scholarship

No abstract provided.

Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens, Bernard E. Harcourt

Faculty Scholarship

In March 1944, doctors at the University of Chicago began infecting volunteer convicts at Stateville Prison with a virulent strand of malaria to test the effectiveness and side-effects of potent anti-malarial drugs. According to Dr. Alf Alving, the principal investigator, malaria "was the number-one medical problem of the war in the Pacific" and "we were losing far more men to malaria than to enemy bullets." This refrain would rehearse one of the most productive ways of speaking about prisoner experimentation. The Stateville prisoners became human once again and regained their citizenship and political voice by sacrificing their bodies to the …

An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt

Faculty Scholarship

Previous research suggests that mass incarceration in the United States may have contributed to lower rates of violent crime since the 1990s but, surprisingly, finds no evidence of an effect of imprisonment on violent crime prior to 1991. This raises what Steven Levitt has called “a real puzzle.” This study offers the solution to the puzzle: the error in all prior studies is that they focus exclusively on rates of imprisonment, rather than using a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel-data regressions over the 68-year period from 1934 to 2001 and controlling for …

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Faculty Publications By Year

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …

Hiv And Women: Incongruent Policies, Criminal Consequences, Aziza Ahmed

Faculty Scholarship

UN Women must take an aggressive role in the standardization of laws and policies at the global and national level where their incongruence has negative and often criminal consequences for the health and lives of women and girls. This article focuses in on three such examples: opt-out testing for HIV, criminalization of vertical transmission, and the new World Health Organization guidelines on breastfeeding.

Feminism, Power, And Sex Work In The Context Of Hiv/Aids: Consequences For Women's Health, Aziza Ahmed

Faculty Scholarship

This paper examines the involvement of feminists in approaches to sex work in the context of HIV/AIDS. The paper focuses on two moments where feminist disagreement produced results in favor of an "anti-trafficking" approach to addressing the vulnerability of sex workers in the context of HIV. The first is the UNAIDS Guidance Note on Sex Work and the second is the "anti-prostitution pledge" found in the Presidents Emergency Plan for AIDS Relief. This article also examines the anti-sex work position articulated by abolitionist feminists and demonstrates the unintended consequences of the abolitionist position on women's health. By examining the actual …

Ohio's Aggressive Attack On Medical Identity Theft, Stanley C. Ball

Journal of Law and Health

This note explains the severity of medical identity theft and the state and federal legislative reactions to the problem. Specifically, the note discusses data breach notification statutes that require healthcare providers to notify consumers when the systems holding customer personal information are breached. The note concludes that Ohio’s data breach notification statute, which does not expressly cover healthcare providers, should be amended to protect residents from medical identity theft and provide redress when healthcare providers violate state law.

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman

Articles & Chapters

This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …

Too Good To Be True: Second Thoughts On The Proliferation Of Mental Health Counts, H Archibald Kaiser

Articles, Book Chapters, & Popular Press

The last two decades have witnessed the proliferation of mental health courts, proffered by governments as an efficacious and sometimes exclusive response to the complex social dynamics causing the criminalization of persons who live with mental health problems. the ready embrace of this variant of the problem-solving-courts genre has diverted policy-makers and citizens from confronting the root causes of the challenging intersection of mental illness and crime. the new courts have acquired a legitimacy that belies a wide range of doubts about their existence and operation. this commentary will offer a counterpoint to the accelerating momentum of mental health courts. …

Caveat Emptor, Venditor Et Praescribor: Legal Liability Associated With Methyplenidate Hydrochloride (Mph) Use By Postsecondary Students, Jocelyn Downie, Fiona Campbell, Simon Outram

Articles, Book Chapters, & Popular Press

For years, students have endured the physical and mental stress that comes as a result of the demands of post-secondary education. All -night cramming for exams and marathon paper writing sessions are considered, by many, to be a rite of passage, endured by generations of students. For many years, students have also turned to stimulants (from coffee to energy drinks and caffeine pills) to extend their physical and cognitive limits in order to better cope with the demands of school and life. In this sense, the use of stimulants as study-aids is not a new phenomenon nor has it been …

Mental Illness And Self-Representation: Faretta, Godinez And Edwards, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the recent decision of Indiana v. Edwards the Supreme Court held that the right to represent oneself may be denied to defendants who are competent to stand trial if they "still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Edwards was a surprise, given the Court's holding 15 years earlier in Godinez v. Moran that Nevada courts did not err when they permitted a mentally ill person who had been found competent to stand trial to waive the right to counsel, plead guilty and waive the presentation of …

A Circumspect Look At Problem-Solving Courts, Richard C. Boldt

Faculty Scholarship

No abstract provided.

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Faculty Scholarship

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?

This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman

Michigan Journal of Gender & Law

In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in …

Protecting Hiv Positive Women’S Human’S Rights: Recommendations For The Obama Administration, Aziza Ahmed, Catherine Hanssens, Brook Kelly

Faculty Scholarship

To bring the United States in line with prevailing human rights standards, its National HIV/AIDS Strategy will need to explicitly commit to a human rights framework when developing programmes and policies that serve the unaddressed needs of women. This paper focuses on two aspects of the institutionalized mistreatment of people with HIV: 1) the criminalization of their consensual sexual conduct; and 2) the elimination of informed and documented consensual participation in their diagnosis through reliance on mandatory and opt-out testing policies. More than half of US states have HIV-specific laws criminalizing the consensual sexual activity of people with HIV, regardless …

Kairos And Safe Havens: The Timing And Calamity Of Unwanted Birth, Susan Ayres

Faculty Scholarship

It is impossible to know the number of infants killed or illegally abandoned at birth. No official reporting requirements exist, but conservative estimates claim that in the United States, 150-300 infants are killed within twenty-four hours of life and that over 100 infants are illegally abandoned. Beginning in 1999, in an effort to stem the problem of neonaticide and illegal abandonment, states began enacting laws to legalize abandonment. By 2008, all fifty states had enacted safe haven laws, which allow parents to anonymously abandon newborns by delivering them to designated providers, such as hospitals. This article provides a practical and …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Rodriguez Redux, Jocelyn Downie, Simone Bern

Articles, Book Chapters, & Popular Press

Assisted suicide has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. In addition the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide and the results of an Ipsos Reid public opinion poll on assisted suicide were released. Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, and given this recent spate of attention, we …

Violence, Fear, And Jason's Law: The Needless Expansion Of Social Control Over The Non-Dangerous Mentally Ill In Ohio, Jessica L. Mackeigan

Cleveland State Law Review

Ohio House Bill 299, known as Jason's Law in memory of Officer Jason West, proposes involuntary outpatient care for treatment resistant mentally ill individuals. Jason's Law should not be enacted as written because it will compel respondents to adhere to outpatient treatment based upon predictions of future danger to self or others rather than findings of imminent danger or incompetence, it will remove treatment flexibility currently guaranteed by Ohio law by extending the duration of treatment and limiting a treatment provider's discretion, it will compel the use of unproven medication over the objections of a presumably competent individual without requiring …

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

All Faculty Publications

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with non-disclosure of one's HIV status, the author concludes that criminal law should …

Who Is To Shame? Narratives Of Neonaticide, Susan Ayres

Faculty Scholarship

In seventeenth-century England, single women who killed their newborns were believed to have acted to hide their shame. They were prosecuted under the 1624 Concealment Law and punished by death. This harsh response eventually evolved into a more humane and sympathetic one, as shown by the increasing number of acquittals in the late eighteenth century and by the sharp drop of prosecutions in the late nineteenth century. Then, in 1922, England passed the Infanticide Act, amended in 1938, which provided that a mother who killed her child would be prosecuted for manslaughter, not murder. Today, the great majority of women …

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Legislative Updates

The Modern American

No abstract provided.

Curing The Bop Plague With Booker: Addressing Inadequate Medical Treatment In The Bureau Of Prisons, 41 J. Marshall L. Rev. 219 (2007), Natalie Hinton

UIC Law Review

No abstract provided.

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber

Faculty Scholarship

No abstract provided.

Shifting Paradigms: From Relapse Prevention To Wellness, Robert E. Longo Lpc, Ncc

Public Interest Law Reporter

Today's youth present greater challenges than during any other time in recent history. The author proposes that "sex offending by youth is a symptom of a greater problem." Young people with sexual behavior problems and sexual aggression behaviors must be looked at from a holistic/ecological perspective as they may be subject to co-morbid diagnosis, traumatic histories that may have neuro-biological impact on the brain and brain development, and learning deficits and disabilities among other concerns. This article will briefly outline the current thinking about assessing youth with sexual behavior problems and youth who are sexually aggressive from both a sexual …

Youth Who Have Sexually Abused: Registration, Recidivism, And Risk, David Prescott

Public Interest Law Reporter

No abstract provided.

Juvenile Sex Offender Registration Laws In The United States: How The Adam Walsh Act Will Affect Juvenile Sex Offenders, Brittany I. Bohn Jd

Public Interest Law Reporter

No abstract provided.