Health Law and Policy Commons^™

Special Topics In Preventing And Responding To Prison Rape: Medical And Mental Healthcare, Community Corrections Settings And Oversight, Brenda V. Smith, Theodis Beck, Michele Deitch

Presentations

Hearing transcripts regarding medical and mental health care, community corrections, and oversight related to the prevention of and response to inmate sexual assault. Points of entry are: full transcript; opening remarks; personal accounts; response and treatment—caring for sexual assault victims in correctional and detention facilities; confidentiality and reporting—medical ethics, victim safety, and facility security; sexual violence and community corrections—the special considerations of community-based settings; and best practices and emerging trends—the community corrections field’s response to the Prison Rape Elimination Act. This article contains testimony specifically about the State of North Carolina.

Beetles For Breakfast: What The Fda Should Be Telling You, Kaycee L. Wolf

Journal of Food Law & Policy

Imagine sitting down to breakfast and eating strawberry yogurt with a glass of grapefruit juice. You think you are eating a healthy meal, but along with vitamins, calcium, and nutrients, you are getting a side of crushed beetles. Cochineal extract and carmine, two color additives derived from the cochineal beetle, color many foods such as strawberry yogurt. When people consume products with color additives, most do not realize that they could be ingesting insects, which can also be potentially dangerous, not to mention possibly unappetizing or upsetting. Imagine that one minute you are sitting down to eat a healthy cup …

The Choice To Limit Choice: Using Psychiatric Advance Directives To Manage The Effects Of Mental Illness And Support Self-Responsibility, Breanne M. Sheetz

University of Michigan Journal of Law Reform

Psychiatric advance directives are a valuable tool for individuals with mental illnesses. Ulysses directives, in particular, allow individuals to bind themselves to treatment in advance of needing it for the purpose of overcoming illness-induced refusals. This Note evaluates the effectiveness of state advance directive statutes in three areas that are especially important for Ulysses directives: defining competency to execute, activate, and revoke directives; waiving the constitutional right to refuse treatment; and encouraging provider compliance. This Note ultimately advocates for other states to adopt provisions similar to a Washington State statute. The Washington statute authorizes Ulysses directives by allowing advance consent …

Uncapping The Bottle: A Look Inside The History, Industry, And Regulation Of Bottled Water In The United States, Joyce S. Ahn

Journal of Food Law & Policy

"Agu chupa! Agu chupa!" As we drove through the lush rolling hills of northwestern Rwanda, a crowd of young children appeared from the tea fields and repeatedly shouted these words to us. The taxi driver explained that the children wanted our "water bottes." Aware that visitors often drink bottled water, the children run alongside taxis with the hopes of obtaining the plastic bottles. Although Rwandan children typically carry their drinking water in tightly-woven baskets, the modern plastic bottles have become popular and prized possessions.

The Battle Of The Bulge: Evaluating Law As A Weapon Against Obesity, Margaret Sova Mccabe

Journal of Food Law & Policy

"Silly rabbit, Trix are for kids." Since the 1970s, kids have gotten to know the silly rabbit created to promote sugary, fruit-flavored cereal in television ads. Today, "i'm lovin' it" is the McDonald's slogan, but to millions of children the more recognizable symbol is Ronald McDonald. Ronald McDonald is so recognizable that one study pegged recognition of Ronald among American children at 96% and another at 80% by children in nine other countries. Given the "obesity crisis," many question whether these ads should be permitted, with some questioning whether such products are even safe for children's consumption. The Trix Rabbit …

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

Cardozo Law Review

No abstract provided.

Health Care Law, Sean P. Byrne, Paul Walkinshaw

University of Richmond Law Review

Arguably, no other field of law in Virginia matches the complexity, magnitude, and universality of health care. It therefore comes as little surprise that Virginia's legislative and judicial branches of government devoted substantial attention to health care law issues in 2006 and 2007. Between April 2006 and April 2007 the time period covered by this article the Supreme Court of Virginia decided a large number of cases directly affecting health care law in the Commonwealth. The 2007 legislative session also addressed a host of health care issues and those with the most impact are summarized herein. These judicial and legislative …

Do Citizens Care About Federalism? An Experimental Test, Robert A. Mikos, Cindy D. Kam

Vanderbilt Law School Faculty Publications

The ongoing debate over the political safeguards of federalism has essentially ignored the role that citizens might play in restraining federal power. Scholars have assumed that citizens care only about policy outcomes and will invariably support congressional legislation that satisfies their substantive policy preferences, no matter the cost to state powers. Scholars thus typically turn to institutions-the courts or institutional features of the political process-to cabin congressional authority. We argue that ignoring citizens is a mistake. We propose a new theory of the political safeguards of federalism in which citizens help to safeguard state authority. We also test our theory …

Offsetting Risks, Ariel Porat

Michigan Law Review

Under prevailing tort law, an injurer who must choose between Course of Action A, which creates a risk of 500 (there is a probability of .1 that a harm of 5000 will result), and Course of Action B, which creates a risk of 400 (there is a probability of.] that a harm of 4000 will result), and who negligently opts for the former will be held liable for the entire harm of 5000 that materializes. This full liability forces the injurer to pay damages that are five times higher than would be necessary to internalize the risk of 100 that …

Mid-Atlantic Ethics Committee Newsletter, Fall 2007

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

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.

Invisible Actors: Genetic Testing And Genetic Discrimination In The Workplace, Susannah Carr

University of Arkansas at Little Rock Law Review

Current federal and state law is inadequate to protect employees from employer's misuse of their genetic information. Genetic information is knowledge of a person's genome that indicates a predisposition towards an illness, disease, or medical condition, where symptoms of the condition have yet to manifest themselves. Federal law protections are insufficient, and relevant state laws vary in their scope and application. Not only are employees unevenly protected across the United States, but varying standards also make complying with the law difficult for interstate employees.

To give employees sufficient protection and to facilitate employer compliance, Congress should pass a law specifically …

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 …

Medical Judgment In Court And In Congress - Abortion, Refusing Treatment, And Drug Regulation, George J. Annas

Faculty Scholarship

Over the past four decades, the courts and Congress have consistently granted almost unqualified deference to physicians (and medical ethics), at least for treatment decisions made in the context of a consensual physician-patient relationship. The primary exception to this harmonious deference is the 2007 abortion decision of Gonzales v. Carhart, 127 S. Ct. 1610 (2007), and it is reasonable to review our continuing and seemingly intractable legal debate over abortion and the physician's role in it to determine if it could erode judicial and congressional deference to medical judgment in other areas of medical practice and medical ethics.

Children's Behavioral Health Services In Baltimore: Walking The Continuum, Jennifer Ryan

National Health Policy Forum

This site visit explored the range of behavioral health services available for children in the city of Baltimore and in the state more broadly. Like many states, the policy community in Maryland has been working hard to meet the challenges of providing an effective continuum of care in the context of complex financing incentives and an overburdened educational and public health care system. Several promising practices have emerged, including the Wraparound practice model that offers individualized, comprehensive services and natural supports to achieve a positive set of outcomes for the child and family. The wraparound model incorporates both traditional services …

Medicare Advantage Payment Policy, Mark Merlis

National Health Policy Forum

Medicare Advantage (MA) plans have become a source of supplemental benefits for many Medicare beneficiaries. In many cases, MA plans are able to finance these extra benefits only because Medicare is paying them more than it would have spent to cover the same beneficiaries on a fee-for-service basis. As Congress considers curbing MA plan payments, this background paper explains how MA plans are paid and reviews recent trends in plan participation and enrollment. It then considers key issues raised by proposals to change the payment system.

Climate Change, Human Health, And The Post-Cautionary Principle, Lisa Heinzerling

O'Neill Institute Papers

In this Article, I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a ?post-cautionary? principle for a post-cautionary world, in which some very bad effects of climate change are …

Inadmissible, Eh?, Jocelyn Downie, Ronalda Murphy

Articles, Book Chapters, & Popular Press

In this commentary, we respond to Stacey Tovino's invitation to reflect further on specific legal issues she raises in relation to functional magnetic resonance imaging (fMRI) and the law (Tovino 2007). Specifically, we take up the issue of evidence law. We do this from a Canadian perspective because, unlike in the United States, this topic has not "been debated for almost 10 years" here (Tovino 2007, 44).

Physician Profiling: Can Medicare Paint An Accurate Picture?, Laura A. Dummit

National Health Policy Forum

Physician profiling, that is, the comparison of the health care services used by a physician’s patients to average service use or another benchmark, has been proposed as a way to improve Medicare. It has been used by private health plans and physician groups to identify both efficient practice patterns and the physicians who practice efficiently. The Medicare Payment Advisory Commission (MedPAC) and the Government Accountability Office (GAO) have recommended that Medicare adopt physician profiling to slow spending growth and improve efficiency. Recent legislation would mandate that Medicare employ profiling. This issue brief reviews MedPAC and GAO’s analyses of profiling, concerns …

The Difficult Case Of Direct-To-Consumer Drug Advertising, David C. Vladeck

O'Neill Institute Papers

This article will appear in a symposium to pay tribute to Professor Steven H. Shiffrin, one of the leading First Amendment theorists of our time. The author was asked to focus on Professor Shiffrin’s contribution to the development of the commercial speech doctrine. To reflect on the wisdom of Professor Shiffrin’s refusal to rely on general First Amendment theories, the article focuses on the difficult First Amendment problem of regulating direct-to-consumer (DTC) advertising of prescription drugs. In his famous dissent in Virginia Pharmacy Board, then-Justice Rehnquist forecast that, as a consequence of the Court’s ruling, drug companies would soon advertise …

A Critical Examination Of The Fda’S Efforts To Preempt Failure-To-Warn Claims, David A. Kessler, David C. Vladeck

O'Neill Institute Papers

This article explores the legality and wisdom of the FDA’s effort to persuade courts to find most failure-to-warn claims preempted. The article first analyzes the FDA’s justifications for reversing its long-held views to the contrary and explains why the FDA’s position cannot be reconciled with its governing statute. The article then examines why the FDA’s position, if ultimately adopted by the courts, would undermine the incentives drug manufacturers have to change labeling to respond to newly-discovered risks. The background possibility of failure-to-warn litigation provides important incentives for drug companies to ensure that drug labels reflect accurate and up-to-date safety information. …

Law & Health Care Newsletter, V. 15, No. 1, Fall 2007

Law & Health Care Newsletter

No abstract provided.

Tobacco Regulation Review, V. 6, No. 2, Sept. 2007

Tobacco Regulation Review

No abstract provided.

Race Against Time, Sarah Feor

Buffalo Human Rights Law Review

Book review of Stephen Lewis' Race Against Time

Medicare's Use Of Risk Adjustment, Gerald F. Kominski

National Health Policy Forum

Medicare accounts for expected differences in resource needs of patients or health plan enrollees by risk-adjusting the payments it makes to health care facilities, such as hospitals, skilled nursing facilities, and home health agencies, and the premiums it pays to health plans. Risk adjustment is intended to ensure that payments or premiums are adequate for patients or plan enrollees who require more resources than average in order to protect beneficiary access as well as the financial condition of the provider or plan. At the same time, risk adjustment lowers payments or premiums for beneficiaries who are expected to use fewer …

Medicaid And State Budgets: Clearing Storm, Foggy Forecast, Courtney Burke

National Health Policy Forum

This issue brief examines the recent history and trends in state budgets and considers how those trends have influenced the role of the Medicaid program. The paper offers several indicators for predicting the future of states’ fiscal standing, cautioning that, although the “stormy” period from 2001 to 2003 is over, states face many challenges in the near future. This issue brief also poses several questions regarding the appropriate roles of state and federal governments in administering the Medicaid program. These questions become particularly important as the population ages and states increasingly take the lead in developing solutions for covering the …

Fast-Food Government And Physician-Assisted Death: The Role Of Direct Democracy In Federalism, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Modern patients often enter a twilight zone of suspended animation between living and dying that did not exist a generation ago. The majority of Americans believe these terminal patients should have the right to refuse life support and to receive pain relief, even to the point of hastening death. Yet laws addressing the situation are unclear, and physician advocates, like Dr. Kevorkian of Michigan, have faced sanctions and jail time when they responded to patient requests for help to die peacefully. In its 2006 Gonzales v. Oregon decision, the U.S. Supreme Court shifted the physician-assisted death dilemma to the state-side …