Health Law and Policy Commons^™

Human Rights And Bioethics: Formulating A Universal Right To Health, Health Care, Or Health Protection?, George P. Smith, Ii

Vanderbilt Journal of Transnational Law

Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks--foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization.

Although advanced--and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics--attainment of such a universal right to …

Is Atkins The Antithesis Or Apotheosis Of Anti-Discrimination Principles? Sorting Out The Groupwide Effects Of Exempting People With Mental Retardation From The Death Penalty, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In "Atkins v. Virginia", the U.S. Supreme Court held that people with mental retardation may not be executed. z Many advocates for people with disability cheered the decision, because it provides a group of disabled people with protection from the harshest punishment imposed by our society. But other disability advocates were dismayed by "Atkins", not because they are fans of the death penalty, but because they believe that declaring disabled people ineligible for a punishment that is accorded all others denigrates disabled people as something less than human. If people with disability are to be treated equally, these dissenters suggest, …

Can't We All Just Get Along?: The Treatment Of "Interacting With Others" As A Major Life Activity In The Americans With Disabilities Act, Mark Deloach

Vanderbilt Law Review

The Americans with Disabilities Act (ADA) was passed in 1990 with the stated goal of providing a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Congress determined that, at the time of the passage of the Act, approximately forty-three million Americans had mental or physical disabilities. By enacting the ADA, Congress meant to "provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Now, fourteen years after the ADA's enactment, the success of these goals is in doubt. A 1998 survey of cases brought under Title I of the ADA indicated that …

Aids Is Risky Business: Examining The Effect Of The Aids Crisis On Publicly Traded Companies In South Africa And The Implications For Both South African And U.S. Investors, Martha L. Salomon

Vanderbilt Journal of Transnational Law

The Author explores the implications of the AIDS epidemic for South African businesses. She discusses the financial impact of the disease on shareholder investments and what measures can, and should, be taken by South African businesses to assess the extent of the financial damage and to help prevent and treat infected individuals. The Author focuses on a new listing requirement recently passed by the Johannesburg Securities Exchange in South Africa that requires companies to implement corporate governance and responsible HIV/AIDS policies as a prerequisite for listing on the Exchange. In addition, she discusses a new "Socially Responsible Investment" index that …

Medication Misadventures: The Interaction Of International Reference Pricing And Parallel Trade In The Pharmaceutical Industry, Lana Kraus

Vanderbilt Journal of Transnational Law

Governments in developing countries seeking to combat the rising costs of health care have increasingly focused on the pharmaceutical industry. They often set the amount they will pay for pharmaceutical prices through reference to other countries' prices when negotiating with pharmaceutical companies in an effort to control health care expenditures. This system of international reference pricing inhibits access to essential pharmaceuticals in underdeveloped countries and decreases pharmaceutical innovation and equitable research and development cost-sharing between developed countries.

This Note explores the tension between market forces in the pharmaceutical industry and promoting pharmaceutical innovation, equitable research, development cost-sharing, and access to …

Pressing Precaution Beyond The Point Of Cost-Justification, Gregory C. Keating

Vanderbilt Law Review

Years ago, Bruce Ackerman contrasted two competing perspectives on law, that of the "ordinary observer" and that of the "scientific policymaker."' The perceptions and discourse of the "ordinary observer," Ackerman explained, start from the common practices and language of laymen. The "scientific policymaker" takes the realization of particular objectives-efficient precaution against risks of accidental injury and death, for example-as her end and uses the law as an instrument toward that end. Clashes between these two perspectives are endemic to our legal culture. Nowhere in the law of accidents is that conflict sharper than in cases where the risks imposed threaten …

What Atkins Could Mean For People With Mental Illness, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium on Atkins v. Virginia - the Supreme Court decision that prohibited execution of people with mental retardation - argues that people with severe mental illness must now also be protected from imposition of the death penalty. In labeling execution of people with mental retardation cruel and unusual, the Atkins majority stressed that mentally retarded people who kill are less blameworthy and less deterrable than the average murderer, an assertion that can also be made about people with severe mental illness. As it had in previous eighth amendment cases, however, the Court also relied heavily …

Rethinking Legally Relevant Mental Disorder, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The law insists on maintaining mental disorder as a predicate for a wide array of legal provisions, in both the criminal justice system and the civil law. Among adults, only a person with a "mental disease or defect" can escape conviction for an intentional, unjustified crime on grounds of cognitive or volitional impairment.' Only people with "mental illness" or "mental disorder" may be subjected to indeterminate preventive commitment based on dangerousness. Under the laws of many states, only people with a mental disorder are prevented from making decisions about treatment, criminal charges, wills, contracts, and a host of other important …

The Market Value Of Reducing Cancer Risk: Hedonic Housing Prices With Changing Information, W. Kip Viscusi, Ted Gayer, James T. Hamilton

Vanderbilt Law School Faculty Publications

In this paper, we use housing price changes occurring after the release of a regulatory agency's environmental risk information to estimate the value people place on cancer risk reduction. Using a large original data set on the repeat sales of houses, matched with detailed data on hazardous waste cancer risk and newspaper publicity, we find that housing prices respond in a rational manner to changes in information about risk. Since the new information indicated that the sites in our sample pose relatively low cancer risk, the informational release led residents to lower their risk beliefs, resulting in an average housing …

Assisting Minors Seeking Abortions In Judicial Bypass Proceedings: A Guardian Ad Litem Is No Substitute For An Attorney, Elizabeth S. Graybill

Vanderbilt Law Review

Since the 1973 decision in Roe v. Wade,' minors have been particularly affected by the efforts of pro-life activists and state legislatures who have curtailed abortion rights by lobbying for and passing legislation that restricts reproductive freedom. Forty-three states have enacted laws requiring a minor either to obtain consent from or to notify one or both parents before undergoing an abortion, and thirty-three of these statutes are currently enforceable. The Supreme Court has recognized the right of parents to be involved in a child's upbringing and the prerogative of the state to limit a minor's freedom to make major life …

The New Cigarette Paternalism, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Smoking is by far the largest single risk that most people take. Perhaps in part because of that prominence, smoking has been the target of a wide variety of regulations and legal actions. The controversy over tobacco products is at least four centuries old, but it has been largely over the past half-century that the diverse wave of public policy initiatives against tobacco products has emerged. Within a standard economic framework of consumer choice, there would seem to be little impetus for broadly based government efforts to discourage smoking. The risks of smoking are largely borne by the consumers who …

Safety At Any Price, W. Kip Viscusi, Ted Gayer

Vanderbilt Law School Faculty Publications

After three decades of experience with extensive government regulation and oversight of health, safety and environmental matters, we have reason to believe that those measures have largely failed to fulfill their initial promise, but many of the initial promises were infeasible goals of a "zero-risk" society. Economic findings with respect to risk-risk tradeoffs highlight the fallacies inherent in government's zero-risk mentality. Agencies that make an unbounded financial commitment to safety frequently are sacrificing individual lives. There continues to be major opportunities to improve regulatory performance by targeting existing inefficiencies and using market mechanisms (rather than strict command-and-control mechanisms) to achieve …

Health Versus Trade: The Future Of The Who's Framework Convention On Tobacco Control, Alyssa Woo

Vanderbilt Journal of Transnational Law

On October 16, 2000, the World Health Organization (WHO) began the first session of negotiations of its first international health treaty, the Framework Convention on Tobacco Control (FCTC). Scheduled for adoption in May 2003, the FCTC is a comprehensive multilateral treaty that will cover everything from tobacco smuggling to tobacco advertising and the extent of the liability of tobacco companies.

This Note argues that even-handed domestic measures implementing the FCTC will be protected from international, trade-based complaints because the World Trade Organization's dispute settlement system has given sufficient and appropriate content to the health exception to the normal trade rules …

Cigarette Smokers As Job Risk Takers, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Using a large data set, the authors find that smokers select riskier jobs, but receive lower total wage compensation for risk than do nonsmokers. This finding is inconsistent with conventional models of compensating differentials. The authors develop a model in which worker risk preferences and job safety performance lead to smokers facing a flatter market offer curve than nonsmokers. The empirical results support the theoretical model. Smokers are injured more often controlling for their job's objective risk and are paid less for these risks of injury. Smokers and nonsmokers, in effect, are segmented labor market groups with different preferences and …

Protecting Health Information Privacy: The Case For Self-Regulation Of Electronically Held Medical Records, Catherine L. Glenn

Vanderbilt Law Review

Advances in technology have given new life to debates concerning privacy.' Specifically, issues surrounding increased access to personal medical records have recently garnered attention. On one side of the debate, healthcare providers and insurers support expanded access to medical records for treatment, research, and insurance claims purposes. At the same time, however, many patients legitimately expect their medical records to remain private. The advent of Internet access to patient records and electronic medical insurance claims submissions has heightened patients' concerns that computerized medical records will offer less protection and more potential for unauthorized disclosure than paper files in locked cabinets. …

An End To Insanity: Recasting The Role Of Mental Disability In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self-defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast …

Doubts About Daubert: Psychiatric Anecdata As A Case Study, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme Court sensibly held that testimony purporting to be scientific is admissible only if it possesses sufficient indicia of scientific validity. In Kumho Tire Co. v. Carmichael, the Court more questionably held that opinion evidence based on "technical" and "specialized" knowledge must meet the same admissibility threshold as scientific testimony. This Article addresses the implications of these two decisions for opinion evidence presented by mental health professionals in criminal trials.

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn

Vanderbilt Law School Faculty Publications

This Article has argued that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of …

Health Care Reform Through Medicaid Managed Care: Tennessee (Tenncare) As A Case Study And A Paradigm, James F. Blumstein, Frank A. Sloan

Vanderbilt Law Review

TennCare is a Medicaid demonstration project that allows Tennessee to require all Medicaid beneficiaries to secure medical care through a mandatory managed care system. Enrollees contract with private managed care organizations ("MCOs'), which are responsible for organizing a network of care providers and delivering medical care to covered beneficiaries. Driven by rapidly escalating Medicaid costs, TennCare's mandatory managed care program has succeeded in saving money for the state in its Medicaid program. To secure the federal waiver that allowed the program to proceed, the state included non-Medicaid-eligible uninsured and uninsurable residents as TennCare beneficiaries. Federal matching funds accrue for all …

Final Exit: Should The Double Effect Rule Regarding The Legality Of Euthanasia In The United Kingdom Be Laid To Rest?, Brendan A. Thompson

Vanderbilt Journal of Transnational Law

This Note explores the double effect rule that currently governs physician-assisted suicide cases in the United Kingdom. Recent events in the British medical and legal community have raised serious questions about the rule's adequacy, and have arguably created an environment in which Parliament must reexamine the validity of both the double effect rule and the laws governing active euthanasia.

After providing some historical background regarding the origins and development of the double effect rule, this Note surveys recent developments such as changing attitudes towards euthanasia and the public reaction to the Moor verdict, both of which have created an environment …

Smoking Status And Public Responses To Ambiguous Scientific Risk Evidence, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

Situations in which individuals receive information seldom involve scientific consensus over the level of the risk. When scientific experts disagree, people may process the information in an unpredictable manner. The original data presented here for environmental risk judgments indicate a tendency to place disproportionate weight on the high risk assessment, irrespective of its source, particularly when the experts disagree. Cigarette smokers differ in their risk information processing from nonsmokers in that they place less weight on the high risk judgment when there is a divergence in expert opinion. Consequently, they are more likely to simply average competing risk assessments.

The Governmental Composition Of The Insurance Costs Of Smoking, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The estimated health risks from smoking have significant external financial consequences for society. Studies at the national level indicate that cigarettes are self-financing since external costs such as those due to illnesses are offset by cost savings associated with premature death, chiefly pension costs. This paper extends this analysis to all 50 states and considers the costs considered in the state attorneys general suits against the cigarette industry. Cigarettes are always self-financing from the standpoint of costs to each state. The extent of the cost savings is less than at the federal level. However, smokers' higher medical costs are outweighed …

Disabled Former Employees Under The Ada: Unprincipled Decisions And Unpalatable Results, Austin L. Mcmullen

Vanderbilt Law Review

A number of disabled former employees have turned to the Americans with Disabilities Act ("ADA") to redress alleged discrimination in their termination or in the benefit plans of their former employers.' Several courts, however, have held that these plaintiffs are not "qualified individual[s] with a disability," and, therefore, may not recover under the ADA. Other courts of appeals have recently found the ADA's proscription of discrimination in the "terms, conditions, and privileges of employment" to contradict the definition of qualified individuals. These courts resolved the ambiguity by allowing disabled former employees a federal right to sue their former employers for …

Illuminating The Possible In The Developing World: Guaranteeing The Human Right To Health In India, Sheetal B. Shah

Vanderbilt Journal of Transnational Law

This Note argues that the recognition of the social right to health offers a step forward in empowering individuals to gain control over their social environments in the developing world. Part II discusses the potential of social human rights to alleviate suffering in the developing world. Social human rights recognize that the state must provide individuals with the basic social conditions necessary to live with human dignity. Part III explores the legal obligations of social rights and their current status in human rights jurisprudence. It also discusses the most pressing challenges facing implementation of social rights at the national level. …

So You're Having Another Woman's Baby: Economics And Exploitation In Gestational Surrogacy, Angie G. Mcewen

Vanderbilt Journal of Transnational Law

While placing a monetary value on a product or service seems natural in many areas of society, it presents new challenges when introduced into the reproductive arena.' Society has confronted a similar debate before. Life insurance was once viewed as a form of trafficking in human lives. The acceptance of valuation in this and other areas represents a shift in cultural values that must now confront birthing arrangements.

The emergence of new reproductive technologies has ushered in new possibilities not only for women unable to bear children, but also for women willing to bear children for another, and for individuals …

Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This Article begins, in Part I, with a brief review of the past four decades" of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as "psychiatric testimony"). Although this review cannot be called comprehensive, it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such "nontraditional" expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content …

Constructive Cigarette Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Professor W. Kip Viscusi argues for a move away from the adversarial approach to tobacco regulation, an approach that is currently embodied in class action lawsuits and the proposed broadening of FDA regulatory power over cigarettes. In this Article, he suggests that the FDA should take a constructive role in fostering technological innovations to promote cigarette safety, in much the same way that the government currently fosters safety improvements in motor vehicles and jobs. Professor Viscusi claims that the objective of government policy should be to promote informed consumer risk taking-an approach which recognizes that adult consumers have a right …

Teen Smoking Behavior And The Regulatory Environment, Joni Hersch

Vanderbilt Law School Faculty Publications

Professor Hersch argues that most state regulations aimed at fighting teen smoking have had little or no effect. She provides evidence that despite widespread age restrictions on purchasing tobacco, most teens do not consider it difficult for minors to purchase tobacco products within their community. She also presents evidence demonstrating a strong correlation between smoking rates and perceptions about the addictive nature of smoking. These findings suggest that facilitating greater awareness of the addictive power of cigarettes could be effective in curbing teen smoking. She explores the potential for parental restrictions on limiting teen smoking, but provides indications that parents …

Teen Prostitution In Japan: Regulation Of Telephone Clubs, Andrew D. Morrison

Vanderbilt Journal of Transnational Law

The history of prostitution in Japan may be traced to the eighth century. Originally, prostitutes carried on their trade individually and independently. Around the thirteenth century, however, the nature of prostitution changed, as prostitutes formed small enterprises located in red-light districts. By the seventeenth century, red-light districts existed throughout Japan.

In 1900, the Japanese government, realizing the widespread proliferation of the prostitution industry, passed the Regulation for Control of Prostitutes. The law regulated prostitution nationwide by requiring prostitutes to register with local government authorities and to undergo regular health inspections. This system continued until the end of World War Two, …

Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute And The Physician-Patient Fiduciary Relationship, Gregory D. Jones

Vanderbilt Law Review

In one case, a physician refers a patient to a certain hospital in return for an undisclosed referral fee from the hospital. In another, a physician decides not to refer a patient to a specialist for further examination. The physician, however, does not disclose to the patient that part of the cost of sending the patient to the specialist would come out of the physician's potential earnings. In the previous examples, has the physician breached her fiduciary duty to the patient by not disclosing her own financial interest in the patient's treatment? If so, the physician could be guilty of …