Health Law and Policy Commons^™

The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith

Articles

New York's Empire Blue Ccoss and Blue Shield conversion from nonprofic cofor­ profic form has considerable legal significance. Three aspects of the conversion ma.ke checase unique: the role of the scace legislature in directing the disposicion of the conversion assets, che face chac it made itself che primary beneficiary of chose assets, and the actions of che scace attorney general defending the state rather than che public inceresc in che charitable assets. Drawing on several cenruries of common Law rejecting the Legislacive power to direct the disposition of charitable funds, chis article argues chat the legislature lacked power cocontrol che …

A Defense Of Paid Family Leave, Gillian Lester

Faculty Scholarship

The problem of combining work and family life is perhaps the central challenge for the contemporary American family. In this Article, I evaluate and defend government provision of paid family leave, a benefit that would allow workers to take compensated time off from work for purposes of family caregiving.

A legal intervention in the arena of work-family accommodation can only build on some prior normative understanding of the family, and embedded within that, contested value choices about women's identities and entitlements in workplace, family, and society. I am not the first legal scholar to advocate paid family leave of some …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

Intellectual Property Rights And Stem Cell Research: Who Owns The Medical Breakthroughs?, Sean M. O'Connor

Articles

This article will not address the science and ethics of stem cell research—at least as far as those topics are normally addressed in the existing literature. Instead, this article argues that an even more contentious battle is looming on the horizon, with dire practical consequences: Namely, who will own the revolutionary medical breakthroughs that are supposed to emerge from this research? Along the way, this article will assume that stem cell research will progress in some fashion and that at least some of the purported benefits will materialize.

But the central premise is that the pitch of the ownership battle …

Constitutionalizing Tobacco: The Ambivalence Of European Federalism, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

The Treaty Establishing the European Community announces in EC TREATY art. 5.1. the principle that the powers of the European Community are limited to those specifically conferred on it. However, experience and judicial interpretation have shown that, in practice, the allocation of power between the Community decision maker and Member States is neither clear nor immutable. In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (Public Health Article) is a public health provision that expressly refers to the regulation of tobacco. To many, the Public …

Medical Education And Malpractice: What's The Connection ?, Lars Noah

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Is It Too Late For Title Vi Enforcement? - Seeking Redemption Of The Unequal United States' Long Term Care System Through International Means, Ruqaiijah A. Yearby

All Faculty Scholarship

Permeating every facet of life including health care, racial segregation has been a part of the history of the United States since its creation. In fact, the history of African-Americans has been one of tragedy, laced with the hope of equality. This tragedy is a result of three hundred years of slavery, one hundred years of the limited freedom of segregation, three years of the promise of equality granted from the civil rights struggle, and thirty-seven years of resegregation through white flight and institutional racism. Hence, African-Americans have been fighting for the right to freedom, equality, and human dignity for …

Shifting Out Of Neutral: A New Approach To Global Road Safety, Kevin M. Mcdonald

Vanderbilt Journal of Transnational Law

On April 14, 2004, the United Nations dedicated "World Health Day" to improving global road safety. In explaining the need to focus the world's attention on road safety, Secretary General Kofi Annan declared that "World Health Day is an occasion for us to highlight the [road safety] problem and ... to underscore the fact [that crashes] are avoidable, they are not just accidents, they are human errors which [,] with proper governmental policy[,] can be dealt with." Just what the "proper governmental policy" should be, however, requires an understanding of the factors associated with vehicle crashes. After examining these factors, …

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 …

Rights And The Need For Objective Moral Limits, Charles E. Rice

Journal Articles

In this article, we will examine the natural law conception that rights are rooted in human nature, which nature itself is of divine origin through creation. We will compare this natural law concept to the premises and social consequences of the secular, relativist, and individualist approaches common to the jurisprudence of the Enlightenment. This article will offer the conclusion that only a grounding of right in the nature of persons as immortal beings created by God can offer moral and cultural security against the depersonalization characteristic of regimes premised on a relativist individualism.

The (Surprising) Truth About Schiavo: A Defeat For The Cause Of Autonomy, O. Carter Snead

Journal Articles

A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, …

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.

Make Room For Dying: End Of Life Care In Nursing Homes, Sandra H. Johnson

All Faculty Scholarship

The cornerstone of contemporary nursing home care is a commitment to patient rehabilitation. Improved care is an important and worthwhile goal, but it is a goal that has yet to make room for the dying. A significant proportion of older people will spend their final days in a nursing home. This article calls for a culture shift in nursing home care to promote improved care for not only those who can be rehabilitated but also those who are dying.

This article begins by addressing challenges to achieving this culture that are particular to the nursing home context. It then explains …

The Social, Professional, And Legal Framework For The Problem Of Pain Management In Emergency Medicine, Sandra H. Johnson

All Faculty Scholarship

Although supported by both ethical and pragmatic imperatives, pain treatment faces significant barriers, particularly in the setting of emergency medicine. This article argues that pain management is integral to good patient care and specifically, good emergency care. In order to achieve effective emergency pain management, it is crucial to understand the "root causes" of pain neglect in emergency medicine - i.e. to understand why emergency physicians behave as they do in pain treatment.

This article begins by addressing the neglect of pain in emergency medicine and the dearth of empirical research regarding the causes of this neglect. After considering barriers …

Is It Too Late For Title Vi Enforcement?: Seeking Redemption Of The Unequal Long Term Care System In The United States Through International Means, Ruqaiijah Yearby

All Faculty Scholarship

Legal and medical experts have noted continued racism in the health care system that prevents the equal distribution of quality care. Initially most racism was intentional and expressed through de jure segregation, as evidenced by federal funding of the construction of racial segregated health care facilities. Now most racism, expressed through de facto segregation, is subtly incorporated into the daily practices of institutions causing an adverse disparate impact on African-Americans. This institutional racism establishes separate and independent barriers through the neutral denial of opportunities and equal rights to individuals and groups that results from the normal operations of the institutions …

Ending The Exploitation Of The Vulnerable: The Promise Of The Intersection Of American Bioethics, Human Rights, And Health Law, Ruqaiijah Yearby

All Faculty Scholarship

Traditionally, American bioethics has served as a safety net for the rich and powerful, for they are not forced to act as research subjects to obtain access to general health care for themselves or their children. However, American bioethics has failed to protect the vulnerable, i.e. indigent minorities. The vulnerable are not treated the same as the rich. They do not have access to health care. They are exploited in clinical trials that promise monetary gain or access to health care and their autonomy rights are often ignored. Some of the vulnerable most affected by these disparities are African-Americans. African-Americans …

Telling Stories About Health Insurance: Using New Films In The Classroom, Elizabeth Pendo

All Faculty Scholarship

In keeping with the Symposium theme, "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. Specific topics include the erosion of employer-sponsored health insurance, continuation of private coverage under COBRA and HIPAA, public health care programs, physician incentives, the uninsured and access to care and legal remedies for claim denial. This essay builds …

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

All Faculty Scholarship

Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit …

Medical Malpractice Insurance And The Emperor's Clothes, William M. Sage

Faculty Scholarship

Tom Baker and Mark Geistfeld's contributions to this Symposium offer detailed and persuasive analyses of medical malpractice insurance. Their principal contribution to the malpractice reform debate, however, is simple: confirming that liability insurers should not be left to their own devices between malpractice crises or appeased during crisis periods. Instead, liability insurance must be consciously designed to help the health care system work toward its core goals of high quality, broad access, and affordable cost.

In 2000, the IOM issued a follow-up report to its earlier indictment of medical error, calling upon the health care system to become safe, effective, …

Public Medical Malpractice Insurance: An Analysis Of State-Operated Patient Compensation Funds, Frank A. Sloan, Carrie A. Mathews, Christopher J. Conover, William M. Sage

Faculty Scholarship

Compared to major tort and insurance reforms, PCFs have received virtually no attention by scholars. With an exception or two, they are not a major focus of public policy debate either. Because they are small organizations and there have been lengthy periods in which medical malpractice markets are quiescent, they have not attracted much scrutiny. Given a lack of quantitative evidence, our evaluation depended on qualitative evidence. Yet PCFs address the fundamental issues of medical malpractice that have led to reoccurring crises in the availability of medical malpractice insurance coverage and in its premiums for such coverage. As such, PCFs …

Preserving A Precious Resource: Rationalizing The Use Of Antibiotics, Eric Kades

Faculty Publications

No abstract provided.

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to …

Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead

Journal Articles

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly …

The Bustle Of Horses On A Ship: Drug Control In New York City Public Housing, Jeffrey Fagan, Garth Davies, Jan Holland, Tamara Dumanovsky

Faculty Scholarship

For decades, violence, drugs and public housing have been closely linked in political culture and popular imagination. In 1990, the Department of Housing and Urban Development (HUD) made funds available to public housing authorities to combat drug and crime problems. This program, the Drug Elimination Program (DEP) combined several strategies under one administrative umbrella: police enforcement, drug treatment, drug prevention, youth and gang outreach, community organizing, integrated health and social service agencies, and tenant mobilization projects. In New York, the Housing Authority spent $165 million on DEP in its 330 public housing sites between 1990 and 1996. Yet there has …

Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr.

Faculty Scholarship

Over a quarter of a century ago, Judge Henry Friendly coined the term "fraud by hindsight" in upholding the dismissal of a proposed securities class action. As he explained, it was too simple to look backward with full knowledge of actual events and allege what should have been earlier disclosed by a public corporation in its Security and Exchange Commission (SEC) filings. Because hindsight has twenty/twenty vision, plaintiffs could not fairly "seize [] upon disclosures" in later reports, he ruled, to show what defendants should have disclosed earlier.

Today, a parallel concept – "causation by presumption" – is before the …

The Impact Of Hsas On Health Care Reform: Preliminary Results After One Year, Edward J. Larson, Marc Dettmann

Scholarly Works

With over one year having passed since the Medicare Modernization Act ("MMA") authorized the creation of the first individual Health Savings Accounts ("HSA"), this Article reviews the context, structure, promise, and impact of this new type of tax-advantaged account. The Article begins by briefly reviewing the context of this reform, documenting what both Presidents Clinton and Bush noted about rising costs and decreasing access. The Article then reviews the HSA legislation itself, H.R. 2596, and summarizes how HSAs operate. Part IV of this Article reviews the claims made for HSAs when H.R. 2596 passed as part of the MMA. Part …

Gauging The Cost Of Loopholes: Health Care Pricing And Medicare Regulation In The Post-Enron Era, Elizabeth Weeks Leonard

Scholarly Works

This article explores the problem of risk perception and regulatory loopholes in the unique era of corporate governance that followed Enron and other high-profile corporate scandals. The article draws on behavioral law and economics theory to examine pressing issues in U.S. welfare policy reform. The current Administration's domestic agenda features proposals to privatize traditional government welfare programs, including Social Security and Medicare. Those proposals rely on market competition and other profit incentives to improve quality and reduce program costs. The article traces a detailed case study of a prominent for-profit hospital corporation, the impact of public perceptions of corporate wrongdoing, …

“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas

Faculty Scholarship

For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …

Pharmaceutical Arbitrage: Balancing Access And Innovation In International Prescription Drug Markets, Kevin Outterson

Faculty Scholarship

While neoclassical economic theory suggests that arbitrage will undermine global differential pricing of pharmaceuticals, the empirical results are more complex. Pharmaceutical regulation, IP laws, global trade agreements, and company policies support differential pricing despite the pressure of arbitrage. For essential access programs in particular, the theoretical threat of pharmaceutical arbitrage is shown to be rarely observed empirically. Counterfeiting is demonstrated to be the more serious threat. These conclusions call for changes in the U.S. PEPFAR program for AIDS and in the implementation of the WTO TRIPS Agreement.

A more fundamental question, however, is whether pharmaceutical differential pricing is appropriate for …

Do Different Types Of Hospitals Act Differently?, Jill R. Horwitz

Other Publications

This essay is based on testimony delivered before the U.S. House of Representatives Committee on Ways and Means on May 26, 2005.