Health Law and Policy Commons^™

Striving For Equality, But Settling For The Status Quo: Is Title Vi More Illusory Than Real?, Ruqaiijah Yearby

All Faculty Scholarship

A plethora of empirical studies, such as the Institute of Medicine’s Unequal Treatment report, have shown that racial inequities in health care continue at the same level as in the Jim Crow Era. Innumerable reasons have been offered to explain the continuation of these health inequities, including racial discrimination. Congress enacted Title VI of the Civil Rights Act of 1964 to put an end to racial discrimination in health care, but it still persists. Given the regulation and enforcement mechanisms established under Title VI explicitly aimed at remedying racial discrimination such as that directed at elderly African-Americans it is unbelievable …

Thirty Years Of Solicitude: Antitrust Law And Physician Cartels, Thomas L. Greaney

All Faculty Scholarship

Over the last thirty years the Federal Trade Commission and the Department of Justice have challenged dozens of physician cartels, networks, and other arrangements that they alleged constituted price fixing or other restraints of trade under the antitrust laws. In addition, the antitrust agencies have issued numerous advisory opinions, published detailed statements of enforcement policy, and made dozens of public statements on the issue of physician collaboration. The puzzle explored in this essay is why the government's deployment of unparalleled enforcement resources has not curtailed physician attempts to engage in collective bargaining and other attempts to restrain price competition. It …

Book Review: Reviewing Susan Starr Sered And Rushike Fernandopulle, Uninsured In America (2007), Elizabeth Pendo

All Faculty Scholarship

Book Review of Susan Starr Sered and Rushike Fernandopulle, Uninsured in America (2007).

The Health Care Choice Act: The Individual Insurance Market And The Politics Of 'Choice', Elizabeth Pendo

All Faculty Scholarship

Traditionally, employer-sponsored group insurance plans have been the backbone of health insurance coverage in the United States. While it is still true that most Americans get their health insurance through their employment, the erosion of employer-sponsored health insurance has increased the ranks of the uninsured and pushed more workers, retirees and their families into the individual insurance market. In 2005, for example, nine percent of the population, or nearly 27 million people, turned to individual policies for health insurance coverage.

The Health Care Choice Act of 2005 (the "Act") currently before Congress aims to reform perceived problems in the individual …

Multinational Enterprises And Workplace Reproductive Health: Extending Corporate Social Responsibility, Rebecca K. Atkins

Vanderbilt Journal of Transnational Law

Corporate social responsibility is a relatively new approach to the protection of human rights. While the human rights to whole-body health and workplace health are long-standing, the right to reproductive health is a new topic of discussion. This Note examines the right to reproductive health in the workplace and proposes that it would be best protected by imposing an affirmative duty on multi-national enterprises via corporate social responsibility. Origins of human rights, corporate social responsibility, and reproductive health are discussed before turning to the developing stalemate between multi-national enterprises and less developed countries.

Attack Of The Balloon People, Keith E. Sealing

Vanderbilt Journal of Transnational Law

Any discussion of food security would, at first blush, seem to focus primarily on world hunger and other threats to the safety of the food supply, whether intentionally man-made (e.g., terrorism), inadvertently man-made (e.g., global warming), made-for-profit by industrial agriculture (referred to as "industrial food" throughout this Article), or "natural" although arguably man-abetted (such as bovine spongiform encephalopathy, or mad cow disease). And hunger is indeed a problem and likely to become more of a problem. However, this Article focuses on the long term threat to world health and world food security caused by the American way of eating; the …

Foodborne Infections And The Global Food Supply: Improving Health At Home And Abroad, Robert V. Tauxe

Vanderbilt Journal of Transnational Law

In recent years, fourteen percent of the U.S. food supply has been imported from other countries, including many fresh and perishable foods. Although most outbreaks of illness and individual cases are related to foods from the United States, large and unusual outbreaks have been traced to imported foods that were likely contaminated in the country of origin. Investigation of these outbreaks requires collaboration across several disciplines as well as across international borders. Successful investigation can not only control the original problem, but can also inform public authorities in both countries about the need for strategies to prevent similar outbreaks from …

Functional Neuroimaging And The Law: Trends And Directions For Future Scholarship, Stacey A. Tovino

Scholarly Works

Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation, and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging.

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

Scholarly Works

The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the right to …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

Abortion and equality are a common pairing; courts as well as legal scholars have noted the importance of abortion and a woman's ability to control whether and when she has children to her ability to participate fully and equally in society. Abortion and administrative regulation, on the other hand, are a more unusual combination. Most restrictions on abortion are legislatively imposed, while guarantees of reproductive freedom are constitutionally derived, so administrative law does not frequently figure in debates about access to abortion.

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Through The Quarantine Looking Glass: Drug-Resistant Tuberculosis And Public Health Governance, Law, And Ethics, David P. Fidler, Lawrence O. Gostin, Howard Markel

Articles by Maurer Faculty

No abstract provided.

Extensively Drug-Resistant Tuberculosis: An Isolation Order, Public Health Powers, And A Global Crisis, David P. Fidler, Howard Markel, Lawrence O. Gostin

Articles by Maurer Faculty

No abstract provided.

Sharing H5n1 Viruses To Stop A Global Influenza Pandemic, David P. Fidler, Laurie Garrett

Articles by Maurer Faculty

No abstract provided.

Xdr Tuberculosis, The New International Health Regulations, And Human Rights, David P. Fidler, Philippe Calain

Articles by Maurer Faculty

No abstract provided.

Architecture Amidst Anarchy: Global Health's Quest For Governance, David Fidler

Articles by Maurer Faculty

Increased concern about global health has focused attention on governance questions, and calls for new governance architecture for global health have appeared. This article examines the growing demand for such architecture and argues that the architecture metaphor is inapt for understanding the challenges global health faces. In addition to traditional problems experienced in coordinating State behavior, global health governance faces a new problem, what I call “open-source anarchy.” The dynamics of open-source anarchy are such that States and non-State actors resist governance reforms that would restrict their freedom of action. In this context, what is emerging is not governance architecture …

Biosecurity Under The Rule Of Law, David Fidler, Lawrence O. Gostin

Articles by Maurer Faculty

No abstract provided.

Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino

Faculty Articles

Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical …

Obesity, Public Health, And The Food Supply, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This Article proposes a three-part approach to improve the food supply. Specifically, it explores government taxing and spending, two traditional public health tools, and suggests that both of these governmental powers can be used to make healthier foods more readily reasonable prices, while increasing the cost of less healthy alternatives. Finally, it proposes that we promote a true “food democracy” through the creation of an education and awareness campaign. This campaign would not only better educate Americans about proper nutrition but would also focus on how we can change our entire relationship with food. It would encourage consumption of locally …

Book Review: Social Justice: The Moral Foundations Of Public Health And Health Policy, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of Social Justice: The Moral Foundations of Public Health and Health Policy by Madison Powers & Ruth Faden (2006).

In this pathbreaking book, senior bioethicists Powers and Faden confront foundational issues about health and justice. How much inequality in health can a just society tolerate? In a world filled with inequalities in health and well-being, which inequalities matter most and are the most morally urgent to address? In order to answer these questions, Powers and Faden develop a unique theory of social justice that, while developed for the specific contexts of public health and health …

Pandemic Influenza: Ethics, Law, And The Public's Health, Lawrence O. Gostin, Benjamin E. Berkman

Georgetown Law Faculty Publications and Other Works

Highly pathogenic Influenza (HPAI) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. Although the prevalence is currently very low, recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credence to the theory that current outbreaks could have pandemic potential. If the threat becomes a reality, massive loss of life and economic disruption would ensue. Therapeutic countermeasures (e.g., vaccines and antiviral medications) and public health interventions (e.g., infection control, social separation, and quarantine) form the two principal strategies for prevention and response, both of which present formidable …

Biomedical Research Involving Prisoners: Ethical Values And Legal Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Until the early 1970's, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970's, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption …

Global Regulatory Strategies For Tobacco Control, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Recent tobacco control regulation in North America and Western Europe has had a salutary effect, even if smoking remains a pressing public health hazard. But in the 21st century, the tobacco industry has quietly moved its locus of activity to lucrative, emerging markets: the vast populations in Africa, Asia, Eastern Europe, and Latin America. The poorest, least educated, and sickest people on earth inhabit these regions. "Big Tobacco's" new marketing strategy will cause untold morbidity for the world's most vulnerable.

However, there are a variety of effective tobacco control policies that nations can and should enact. The World Health Organization …

Law As A Tool To Facilitate Healthier Lifestyles And Prevent Obesity, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Public health agencies face considerable challenges trying to prevent overweight and obesity in society, primarily because a person's own behavior is often the root cause of the disease. Individuals make personal choices about their diet, exercise, and lifestyle, so disease is often thought of as a matter of personal, not governmental, responsibility. This Commentary shows how law can be used as a tool to prevent overweight and obesity (see Table).

The tools discussed in this article include:

- Disclosure - e.g., labels and consumer information

- Tort liability - e.g., inadequate disclosure of risks, misleading advertisements, and targeting children

- …

The "Tobacco Wars" - Global Litigation Strategies, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The Framework Convention on Tobacco Control (FCTC) identifies civil and criminal litigation as a public health strategy and promotes international cooperation (reporting, technical assistance, and information exchange). Holding the tobacco industry accountable through civil and criminal liability serves a number of public health objectives: punishes companies for hiding known health risks, manipulating nicotine content, and misleading the public; deters and preve nts future harmful behavior; compensates individuals and stake-holders for health care and other costs associated with smoking and exposure to environmental tobacco smoke (ETS); raises prices, resulting in lower tobacco consumption; increases disclosure of health risks, through labeling and …

Human Genetics Studies: The Case For Group Rights, Laura S. Underkuffler

Faculty Scholarship

With the importance of genetic information has come bitter battles over its control. In these battles, some principles have emerged that are beyond dispute. The ability of individuals to control the disposition and genetic testing of their own biological materials is (as a matter of theory, at least) beyond question. No one would argue today that an individual could be subject to genetic testing for studies against her will, or that biological samples obtained from individuals under specified conditions could be simply deemed "free" of such conditions by researchers. Although difficult problems remain in the interpretation of research agreements, the …

A Penny For Your Thoughts: Private And Collective Contracting For Traditional Medicinal Knowledge Modeled On Bioprospecting Contracts In Costa Rica, Katie Bates

Georgia Law Review

For decades, pharmaceutical companies have prospected biologically diverse developing countries for plants and molecules that may form the foundations of groundbreaking medicines. In many cases, native populations have aided researchers by directing them to the plants used in their traditional medicines. Only recently, however, have native peoples pushed for compensation for this valuable contribution. The governments of developing countries, too, have begun to assert legal and physical control over their natural resources, making access to these resources by pharmaceutical companies more difficult and costly. Simultaneously, scientific developments have made drug discovery through alternative methods more feasible. Despite these changes, it …

Medical Tourism: Symptom Or Cure?, Kerrie S. Howze

Georgia Law Review

"Medical tourism" is the phrase used to describe the phenomenon whereby patients travel to a foreign country to consume medical services. This practice has gained momentum in recent years, largely due to accessibility and affordability issues plaguing the U.S. healthcare system. Notably, medical tourism has progressed from being only an option considered by uninsured or under-insured individuals to an option considered by employers as a means of reducing the cost of employee health benefits. This Note examines the medical tourism practice and discusses potential problems with the practice, specifically the lack of remedy in case of medical negligence. Although medical …