Health Law and Policy Commons^™

Bison, Tribes, And Brucellosis In The Interagency Bison Management Plan, Bailey Nickoloff

Sustainable Development Law & Policy

Introduction

It would be in the best interest of the Interagency Bison Management Plan (“IBMP”) and its affiliated agencies to allow Tribal governments and Tribal members to hunt bison within Yellowstone National Park (“YNP”). This would help to reduce the spread of brucellosis, reduce the environmental impacts from bison in YNP, and honor the treaties signed between the United States and Tribal governments. These agencies can accomplish this by implementing treaty hunting rights in a new Environmental Impact Statement (“EIS”) and within an existing legal framework.

Paving A Path To Independent Tiny Living: An Introduction To Roadblocks, Jaclyn Troutner

Sustainable Development Law & Policy

“Tiny living” is a growing trend in which small-scale, ecoconscious housing is used as an alternative means for homeownership. Tiny homes are smaller than the average detached home with the appearance and character of a traditional freestanding residential home. They are one-story, single-occupant dwellings and usually constructed on a trailer base for towing. State-of-the-art building techniques provide a lower environmental burden and utility cost per square foot. Due to their smaller size, tiny homes are cheaper with an average price of $52,000, opening a wider door to home ownership. The typical design is to include all the standard amenities and …

Rulemaking Doubletake: An Opportunity To Repair And Strengthen The National Environmental Policy Act, Rachel Keylon

Sustainable Development Law & Policy

Introduction

In the middle of the twentieth century, there was a turning point in the United States and around the world in the understanding of the human relationship with the natural environment and natural resources. It was a shift from a perspective of natural resources endlessly available for exploitation to a perspective that natural resources are finite, and conservation and preservation are necessary to ensure that these resources are available for future generations. The accumulation of chronic environmental degradation, such as the unchecked proliferation of pesticides and other toxic chemicals, pollution to the nation’s waters, loss of land to erosion, …

About Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Because our publication focuses on reconciling the tensions found within our ecosystem, it spans a broad range of environmental issues such as sustainable development; trade; renewable energy; environmental justice; air, water, and …

Editor's Note, Juliette Jackson, Bailey Nickoloff

Sustainable Development Law & Policy

Dear Readers,

For more than two decades, the Sustainable Development Law and Policy Brief (SDLP) remains true to its mission of providing innovative solutions to some of the most important legal issues related to environmental law, energy law, and natural resources law. We are honored to be the Editors-in-Chief during these unprecedented times in our history, as we witnessed a historical presidential election and now enter the third year of the COVID-19 global pandemic. Despite these unparalleled times, the SDLP staff brought our readership another great issue.

In this issue, our authors provide an in-depth analysis into current regulations and …

Discussant Remarks, Hannah L. Buxbaum

American University International Law Review

Through the lens of current crises—including the climate crisis, the crisis of democracy, and of course the COVID-19 pandemic— Professor Daudet examines the role that international law plays in mediating the principle of national sovereignty and the interests of the global community.1 He goes on to inquire whether these crises might in some way create an opportunity to advance the international legal and political order.

The Mental Health Crisis On Campus: Liability Implications Of Using Emerging Technology, Betsy J. Grey

American University Law Review

Institutions of higher education are facing a “mental health crisis.” Students are experiencing high rates of mental health issues, exacerbated by the pandemic. At the same time, the severity of psychological disorders is accelerating among students. These developments have put enormous pressure on traditional university support systems, and schools have turned to new technologies, like online mental health resources and monitoring systems using artificial intelligence, to expand their mental health services. This article explores the liability implications of using these emerging technologies to address these escalating needs. Universities offer mental health services in good faith to help their students succeed, …

Locked Up And Locked Down In The Land Of Free: A Look At The United States' Prisons And Covid-19'S Disproportionate Effect On Black Americans' Right To Health, Zachary Parrish

American University International Law Review

The United States is infamous for having a large percentage of its population in prison. Each year since 2002, the United States has reported a higher incarceration rate than any other country in the world. Another unfortunate but widely prevalent issue that the United States has is systemic racism. The combination of the United States’ struggles with systemic racism and mass incarceration makes for a disproportionately devastating impact on Black Americans. As a result, Black Americans make up a disproportionate amount of the prisoners that fill American prisons.

El Control Estatal De La (Des)Informacion En Internet En El Contexto De La Pandemia: Un Analisis De Las Tendencias Regionales Bajo Una Perspectiva De Libertad De Expresion, Paula Roko

American University International Law Review

El 3 de mayo de 2020, en el marco del Día Mundial de la Libertad de Prensa, el secretario general de la Organización de las Naciones Unidas (ONU) afirmó que la desinformación se ha convertido en la “segunda pandemia”. Unos meses antes, el Director General de la Organización Mundial de la Salud (OMS) ya había señalado que “las noticias falsas se difunden más rápido y con más facilidad que el virus, y que son igual de peligrosas”. Estos fueron comentarios recurrentes durante el 2020, un año que será recordado por el estallido de una pandemia mundial sin precedentes. Teorías conspirativas …

Derogations To Human Rights During A Global Pandemic: Unpacking Normative And Practical Challenges, Roman Girma Teshome

American University International Law Review

After the World Health Organization (WHO) characterized the COVID-19 outbreak as a “global pandemic,” States responded by taking more restrictive and urgent measures. These measures ranged from restrictions on public events to partial or total lockdowns, which restrict a plethora of human rights. Additionally, an unprecedented number of States declared a state of emergency to justify these measures; as of this writing, roughly two-thirds of States declared a state of emergency due to COVID-19 under the International Covenant on Civil and Political Rights (“ICCPR”).

Lifesaving Discrimination, Dallan F. Flake

American University Law Review

Racial minorities in the United States, and Black people in particular, experience worse health outcomes and lower-quality medical care than White people do. Mounting empirical evidence indicates that for Black Americans, and perhaps other racial minorities, this gap can be narrowed if they are given the choice to receive care from physicians of their same race. Given the significant benefits of patient-physician racial concordance for people of color, this Article argues that medical providers who do not have enough physicians of color on staff to meet their patients’ needs should be permitted in some cases to make race conscious physician-hiring …

How To Survive The Culture Wars: Conflict Of Laws Post-Dobbs, Roger Michalski

American University Law Review

Abortion is the latest flashpoint in the culture wars. Post-Dobbs, red and blue states are hard at work codifying different approaches within their boundaries. However, pills, women, transactions, medical services, and information will cross those boundaries. Both sides already fight about who gets to regulate such boundary-crossing activity with each accusing the other of trespassing on the regulatory space of their disagreeing neighbors.

This is dangerous terrain. A house divided against itself needs tools to mediate and constructively tackle conflict. Without such tools, divisions will deepen and provide an endless stream of incidents to further divide the country. The choice …

A Health Justice Response To School Discipline And Policy, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

American University Law Review

Inequities in school discipline and policing have been long documented by researchers and advocates. Longitudinal data is clear that Black, Indigenous, people of color (BIPOC) students are punished and policed at higher rates than their white classmates. For students who have disabilities, especially those with intersectional identities, the impact of school discipline and policing is amplified, with disparities existing at some of the highest rates across multiple categories. And this disproportionality has not diminished during short- and long-term school closures resulting from the COVID-19 pandemic. In fact, schools have employed new models of exclusion in the pandemic setting that operate …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

American University Law Review

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Climate Change And The Right To Health: A Threat Multiplier, Alejandra Ureta Melcon

Upper Level Writing Requirement Research Papers

This comment argues that climate change threatens fundamental human rights recognized by the United Nations High Commissioner for Human Rights. Therefore, the United Nations should adopt the standards set forth in cases like Sacchi v. Argentina and Teitiota v. New Zealand to denote climate change as a threat to the right to health under Articles 11 and 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights. Climate change is already having monumental impacts on access to food and access to clean water and sanitation, which this comment demonstrates by analyzing two country case studies: The Central African …

Denouncing The Revival Of Pre-Roe V. Wade Abortion Bans In A Post-Dobbs World Through The Void Ab Initio And Presumption Of Validity Doctrines, Nora Greene

American University Journal of Gender, Social Policy & the Law

The United States Supreme Court voted to overturn Roe v. Wade in a leaked draft of Dobbs v. Jackson Women’s Health Organization. Written by Justice Alito and joined by four of the other conservative justices, the decision describes Roe as “egregiously wrong from the start” and blatantly overrules the landmark holding and its prodigy, Planned Parenthood v. Casey. In their state codes, nine states—Alabama, Arizona, Arkansas Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin— have unrepealed criminal abortion bans enacted before Roe. These bans prohibit abortion at any point in pregnancy unless to preserve the life of the pregnant person …

Evolving Beyond Reasonable Accommodations Towards "Off-Shelf Accessible" Workplaces And Campuses, Karla Gilbride

American University Journal of Gender, Social Policy & the Law

One of the hallmarks of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in the workplace on the basis of disability, is that it defines “discrimination” to include “not making reasonable accommodations to the known mental or physical limitations of an otherwise qualified individual with a disability.” This concept of reasonable accommodation was seen as innovative in two ways. It recognized that employers must sometimes take affirmative steps or make adaptations to afford individuals with disabilities an equal opportunity to apply for and perform jobs. And it identified the failure to take such affirmative steps as a type of …

Romanian Government Will Implement Measures To Prevent Further Violations Of Rightsof People With Mental Health Conditions Or Disabilities In Accord With The Decision Of The European Court Of Human Rights, Tesa Hargis

Human Rights Brief

On June 21 and 22, the European Court of Human Rights (ECtHR) and Romania discussed reform measures based on various judgements delivered during the nine-year period between 2012 and 2021. At issue before the ECtHR’s Department for Execution of Judgments was insufficient legal protection, lack of medical and social care, deficiencies in the legal framework governing involuntary placement, inadequate management of psychiatric conditions of detainees, and overcrowding and poor conditions in Romanian mental health facilities.

When Jail & Prison Sentences Become Death Sentences: How Willfully Exposing Incarcerated Persons To Covid-19 Amounts To Cruel & Unusual Punishment, Arielle Aboulafia

Human Rights Brief

Eric Warner called his older brother Hank from San Quentin State Prison almost every Sunday. Though the prison only allowed the brothers to speak for fifteen minutes each week, the two spoke about their lives. In June 2021, Eric stopped calling, and Hank became worried. Hank tried to get in touch with the prison. However, his calls were met with a dead-end voicemail each time. He recalls that he “knew, by not hearing anything, that something was not good.” The following month, prison personnel returned Hank’s calls and told him that his brother Eric had been hospitalized. Later that month, …

First Amendment Challenges To State Vaccine Mandats: Why The U.S. Supreme Court Should Hold That The Free Exercise Clause Does Not Require Religious Exemptions, Donna M. Gitter

American University Law Review

The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases.

This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views …

Quarantine, Isolation, And Metaphorical Takings: Balancing Individual Rights And Public Health Responses To Disease Outbreaks, Thomas Williams

Scholarly Articles in Law Reviews & Journals

Quarantine and isolation are methods employed by public health officials to control the spread of dangerous disease pathogens through physical isolation of those exposed or symptomatic. While use of these methods has declined in the last century through advances in medical knowledge and treatment, emerging disease threats will likely require increased reliance on them. Despite this, quarantine statutes and related regulations fail to provide compensation to those subject to them, and little recourse exists to make those individuals whole for losses incurred, though the pandemic has highlighted a need for work in this area. One means of shifting the burden …

Passports Of Privilege, Seema Mohapatra

American University Law Review

All Americans sixteen and older are now eligible to receive a COVID-19 vaccination. However, many will not be able to access such vaccinations due to their work situation, health status, and inaccessible vaccination sites. Some have suggested that the use of vaccine passports, credentials used to gain access to places and countries by showing proof of vaccinations, may encourage people to get vaccinated. The COVID-19 pandemic has laid bare deep inequities in our society, and this Article argues that the use of vaccine passports would further exacerbate such chasms. Part I of this Article describes the differences between immunity passports …

Health Information Beyond Pandemic Emergencies: Privacy For Social Justice, Leslie Francis

American University Law Review

The COVID-19 pandemic has forcefully revealed the critical importance of timely information to identify emerging infections, discern patterns of disease, and stop disease spread. Information about individuals both as patients, and as ordinary people in the world is necessary for each of these tasks. Yet the implications for information use and efforts to achieve social justice are significant.

This Article first surveys information needs as revealed by the pandemic. It then articulates different normative approaches to privacy and confidentiality to develop two implications for privacy and justice: that information gleaned in clinical care and information possessed by public health should …

National Legal Paradigms For Public Health Emergency Responses, James G. Hodge Jr.

American University Law Review

The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government—federal or state—should actually “call the shots” to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a repeat performance of U.S. COVID-19 response efforts to forthcoming major health threats. …

Disease And Data In Society: How The Pandemic Expanded Data Collection And Surveillance Systems, Alan Butler, Enid Zhou

American University Law Review

The COVID-19 pandemic1 is a global tragedy of historic proportions, and its impacts on our families, communities, and social structures will be felt for many years to come. From the significant to the mundane, COVID-19 has changed many aspects of daily life. One of the less obvious but more long-lasting changes may well be the expansion of data collection and surveillance systems adopted both in response to, and as a result of, the pandemic.

Post-Pandemic Privacy Law, Tiffany C. Li

American University Law Review

COVID-19, the global pandemic that began in 2019, altered how we live our lives in just about every way imaginable. Some of those changes were obvious— for example, those who were fortunate enough to be able to work from home began working online—while other changes were more subtle. The latter category included unprecedented levels of data collection by governments and organizations purporting to collect information that would help stop the pandemic’s spread. Given the deadly nature of COVID-19, few would question any public health efforts, no matter their impact on privacy. However, the lack of attention to privacy issues during …

Tracing The Invisible: Information Fiduciaries And The Pandemic, Anne L. Washington, Lauren Rhue

American University Law Review

Predictive data technology designed to contain the COVID-19 pandemic was not as successful as promised. Data-centric solutions to providing testing and tracing did little to limit the virus’s spread in part because they served only the most visible parts of society. This Article argues for more robust solutions to protect individuals’ privacy—whether those individuals are currently visible or invisible to pandemic technology—if pandemic technology is to provide the universal coverage necessary for a public health emergency, such as the COVID- 19 pandemic. First, we contend that current pandemic data technology operates under rigid technical and social assumptions that thwart participation …

Difficulty Of Care: Aligning Tax And Health Care Policy For Family Caregiving, Christine Speidel

Scholarly Articles in Law Reviews & Journals

In the United States millions of people live with disabilities, many of whom require assistance with activities of daily life to remain in their homes and communities. However, financial support for this assistance is limited. Many caregivers forgo working outside the home in order to provide care to a family member. And while state and federal programs provide some compensation for caregiving, caregivers frequently face problems including poverty, lack of health insurance, lack of Social Security and Medicare credits, and lack of retirement savings. Our nation’s paltry support for caregiving threatens the practical ability of people with disabilities to choose …

Good Health And Good Privacy Go Hand-In-Hand (Originally Published By Jnslp), Jennifer Daskal

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Introduction A Bold Agenda For The Next Steps In Health Reform, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Introduction: In the aftermath of the largely failed Clinton-era health reform push and the build-up to Obamaera reforms, experts worried that another failed effort could cast a ten-year shadow. The tenth anniversary of the Affordable Care Act offered an opportunity for participants in the 2019 Next Steps in Health Reform conference to reflect. If the ACA proves resilient, what paths will it have paved for the next decade of reforms?