Health Law and Policy Commons^™

The Tragedy Of The Human Commons, Ronen Avraham, K. A. D. Camara

Cardozo Law Review

No abstract provided.

The Dysfunctional Progeny Of Eugenics: Autonomy Gone Awol, Matthew D. Martin Iii

Cardozo Journal of International and Comparative Law

The article examines the ethical and legal implications of state-mandated sterilization, tracing its evolution from eugenic practices in the early 20th century to modern forms of reproductive control. It argues that such policies, whether justified by eugenics or population control, consistently violate human rights and raise significant moral concerns. The analysis critiques the Supreme Court's decision in Buck v. Bell as a landmark example of judicial endorsement of pseudoscientific discrimination, while also exploring contemporary issues like prenatal genetic testing and coercive family planning policies.

The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky

Articles

The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …

Removing "The Cloak Of A Standing Inquiry": Pollution Regulation, Public Health, And Private Risk In The Injury-In-Fact Analysis, Robin Kundis Craig

Cardozo Law Review

No abstract provided.

Straddling The Line Of Medical Malpractice: Why There Should Be A Private Cause Of Action Against Physicians Via Emtala, Lawrence Bluestone

Cardozo Law Review

No abstract provided.

Criminal Responsibility And The Disappearing Person, Stephen J. Morse

Cardozo Law Review

No abstract provided.

Federalism And False Claims, Pamela H. Bucy

Cardozo Law Review

No abstract provided.

Tax And Economic Policy Responses To The Medicaid Long-Term Care Financing Crisis: A Behavioral Economics Approach, Diane Lourdes Dick

Cardozo Public Law, Policy & Ethics Journal

The article examines the escalating strain on Medicaid due to rising long-term care costs and an aging population, emphasizing the ineffectiveness of current policies promoting private insurance. It critiques traditional economic models for neglecting behavioral factors like emotional resistance to planning for aging and underestimating future care needs. The analysis concludes that voluntary measures, such as tax incentives and partnership programs, are insufficient and advocates for a universal compulsory program to ensure adequate preparation for long-term care, thereby reducing Medicaid reliance.

Is An Accrued Cause Of Action For Copyright Infringement More Like A Kidney Or A Contract?, Bryanne J. Schmitt

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Hiv Testing Of Pregnant Women: Why Present Approaches Fail To Reach The Desired Objective & The Unconsidered Option, Michelle Yuen

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Battling Breast Cancer: New York's Laws Are Not Enough, Tara Arschin

Cardozo Journal of Equal Rights & Social Justice

The note argues that New York State should mandate insurance coverage for participation in Phase II and Phase III clinical trials for experimental breast cancer treatments, such as HDCABMT, to address gaps in current law and ensure access to potentially life-saving therapies. While New York has progressive laws on breast cancer awareness and treatment rights, its approach to experimental treatment coverage remains inadequate compared to states like California and Massachusetts. The note advocates for legal reforms to eliminate the need for external appeals and reduce litigation, ensuring consistent and equitable access to clinical trials.

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Frank S. Bloch, Jeffrey S. Lubbers, Paul R. Verkuil

Articles

The article evaluates the Social Security Administration's (SSA) new Disability Service Improvement (DSI) process, introduced in 2006, which aims to address inefficiencies and inconsistencies in disability adjudication. The reforms include key innovations such as Quick Disability Determinations (QDDs), the Medical and Vocational Expert System (MVES), and the replacement of the Appeals Council with the Decision Review Board (DRB). While the reforms represent a significant and promising step toward improving the disability determination process, the article identifies remaining concerns, particularly regarding the role of the Federal Reviewing Official (FRO) and rules for submitting evidence at administrative hearings.

Maryland's "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

Cardozo Law Review

No abstract provided.

Medical Torture: End Of Life Decision-Making In The United Kingdom And United States, Jon D. Feldhammer

Cardozo Journal of International and Comparative Law

The note examines the legal and ethical challenges surrounding end-of-life medical decisions in the United States and the United Kingdom, highlighting the failure of both countries to effectively implement patients' end-of-life plans. It argues that the current legal frameworks in both nations often lead to prolonged, painful, and futile medical treatments, violating patient dignity and human rights. The analysis critiques the lack of consensus on medical futility and proposes a legislative model to balance patient autonomy, physician discretion, and ethical medical practice.

Merck V. Integra And Its Aftermath: A Safe Harbor For The Commercial Use Of Biotechnology Research Tools?, Brendan M. O'Malley

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

Cardozo Journal of Equal Rights & Social Justice

The article argues that marriage, cultural practices, and legal frameworks in Zimbabwe disproportionately expose women to HIV/AIDS, with marriage paradoxically increasing their vulnerability despite societal expectations of protection. It contends that legal reforms alone are insufficient to address this issue, emphasizing the need for transformative gender equity to challenge the deeply rooted power imbalances and cultural norms that perpetuate women's susceptibility to HIV infection.

Physician Collective Bargaining: State Legislation And The State Action Doctrine, Roger D. Blair, Kristine L. Coffin

Cardozo Law Review

No abstract provided.

The Xxx-Files: Cal/Osha's Regulatory Response To Hiv In The Adult Film Industry, Christina Jordan

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges in regulating California's straight adult film industry following an HIV outbreak, highlighting tensions between the industry's resistance to regulation and CalOSHA's efforts to enforce workplace safety standards. It critiques the industry's reliance on self-regulation and explores the legal implications of determining whether performers are employees or independent contractors. The analysis underscores the potential public health consequences of inadequate oversight and the industry's threats to evade regulation by moving underground.

Weight-Loss Advertising Too Good To Be True: Are Manufacturers Or The Media To Blame?, Jodie Sopher

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Making Lawyers Compete, Lester Brickman

Articles

The article argues that the market for contingent-fee-financed tort litigation is not price competitive, primarily due to uniform contingency fees charged by lawyers regardless of case-specific factors such as risk or effort required. This lack of competition leads to excessive costs for claimants and contributes to the expansion of tort liability. The author contends that the legal profession maintains this system through various barriers, including ethical rules and entry restrictions, which prevent competitive market forces from functioning effectively.

American Midwifery Litigation And State Legislative Preferences For Physician-Controlled Childbirth, Stacey A. Tovino

Cardozo Journal of Equal Rights & Social Justice

The transition from lay midwife-assisted home births to physician-controlled hospital deliveries in the U.S. was driven by a complex interplay of professional competition, economic interests, and societal biases, which were reinforced by judicial deference to state legislative preferences favoring medical dominance over childbirth practices.

Academics And Bioterrorists: New Thinking About The New Terror, Richard Danzig

Cardozo Law Review

No abstract provided.

Against A Federal Patients' Bill Of Rights, Edward A. Zelinsky

Articles

The failure of the 107th Congress to pass a "Patients' Bill of Rights" (PBR) is widely considered a major disappointment, to be remedied in the 108th Congress by the adoption of such legislation. Indeed, federal PBR proposals have achieved the proverbial motherhood-and-apple-pie status; it is virtually impossible to find anyone actively opposing a federal PBR. Many members of the 108th Congress likely feel pressure to pass PBR legislation before returning to the electorate in 2004.

I advance a contrary perspective: A federal PBR is an idea whose time is past or, to be precise, is an idea whose rationales are …

The Muhammad Ali Boxing Reform Act: Its Problems And Remedies, Including The Possibility Of A United States Boxing Administration, Devin J. Burstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Physician As A Conscientious Objector, J. David Bleich

Articles

No abstract provided.

A Question Of Revenge: Munchausen Syndrome By Proxy And A Proposed Diminished Capacity Defense For Homicidal Mothers, E. Selene Steelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that Munchausen Syndrome by Proxy (MSBP) should be legally recognized as a severe mental disorder, allowing defendants to use a diminished capacity defense in cases of accidental filicide. The author critiques the legal system's inconsistent treatment of MSBP, which often focuses on the physical harm to the child while neglecting the mother's mental state. By acknowledging MSBP as a psychiatric disorder, the law could achieve more nuanced outcomes that consider both the act and the defendant's mental condition, reducing stigma and promoting fairness in criminal liability assessments.

Confronting Disease In A Global Arena, Lauren Z. Asher

Cardozo Journal of International and Comparative Law

The note argues that the global surge in infectious diseases necessitates the integration of human rights principles into international law to ensure effective and equitable responses to public health crises. It emphasizes the critical role of the World Health Organization (WHO) and the International Health Regulations (IHR) in addressing these challenges, while highlighting the need for stronger enforcement mechanisms, standardized funding, and universal adherence to health standards. The analysis underscores the importance of balancing public health measures with individual rights, particularly in areas such as quarantine, privacy, and mandatory treatment.

Comment: Constitutionalism, Privatization, And Globalization, Charles Fried

Cardozo Law Review

No abstract provided.

Environmental Justice: From Partial Victories To Complete Solutions, Valerie P. Mahoney

Cardozo Law Review

No abstract provided.

Daaka V. Carmel Hospital, Dorit Beinisch, Theodor Or, Tova Strasberg-Cohen, Aharon Barak, Shlomo Levin, Mishael Cheshin, Izhak Englard

Translated Opinions

Facts: Appellant was admitted to the hospital for an operation on her left leg, and she signed a consent form agreeing to the operation. Two days later, after being placed on the operating table and receiving sedatives in advance of undergoing anesthesia, she was asked to sign a consent form for a biopsy operation on her right shoulder. She did so, and the biopsy was performed and did not reveal malignancy. After being released from the hospital, her shoulder remained stiff. Appellant sued the hospital for negligence, claiming negligence in failing to receive her informed consent, in the decision to …