Health Law and Policy Commons^™

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

All Faculty Publications

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with non-disclosure of one's HIV status, the author concludes that criminal law should …

Do Norms Still Matter? The Corrosive Effects Of Globalization On The Vitality Of Norms, Patrick J. Keenan

Vanderbilt Journal of Transnational Law

Why does the process of globalization undermine the power of social norms to regulate behavior? Norms are the social regularities that shape individual behavior and help to create vibrant--or dysfunctional--communities. Most theories of norms do not account for the many ways that globalization affects the foundations of norms. This Article fills the gap by developing a more robust theory of the informal regulation of behavior that considers the ways that the process of globalization can interfere with the creation of norms and erode their power.

Drawing on behavioral economics, sociology, and criminology, the theory proposed in this Article contains three …

The Regulation Of Ddt: A Choice Between Evils, Ashley K. Martin

Vanderbilt Journal of Transnational Law

DDT has the potential for great benefit and great harm. It is currently the most efficient method for controlling malaria, particularly for those countries the disease affects most. However, it also causes global pollution and damages the health of humans and wildlife. These characteristics of DDT make regulating DDT difficult because they create a need for the continued use of DDT to prevent the debilitating effects of malaria, but also a need to ban the use of DDT in order to prevent its negative environmental and health effects. These conflicting needs correlate to diverging interests of developing and developed countries. …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

Scholarly Works

Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

The Impact Of Neuroscience On Health Law, Stacey A. Tovino

Scholarly Works

Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

Integrating Accommodation, Elizabeth F. Emens

Faculty Scholarship

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of …

Expedited Partner Therapies For Sexually Transmitted Diseases: Legal And Policy Approaches, Lindsay Wiley, James G. Hodge Jr., Erin Fuse Brown, Dhrubajyoti Bhattacharya

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Strategies For Implementing The New International Health Regulations In Federal Countries, David P. Fidler, Kumanan Wilson, Christopher Mcdougall, Harvey Lazar

Articles by Maurer Faculty

The International Health Regulations (IHR), the principal legal instrument guiding the international management of public health emergencies, have recently undergone an extensive revision process. The revised regulations, referred to as the IHR (2005), were unanimously approved in May 2005 by all Member States of the World Health Assembly (WHA) and came into effect on 15 June 2007. The IHR (2005) reflect a modernization of the international community’s approach to public health and an acknowledgement of the importance of establishing an effective international strategy to manage emergencies that threaten global health security.

The success of the IHR as a new approach …

Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Improving Laws And Legal Authorities For Public Health Emergency Legal Preparedness, David Fidler, Robert M. Pestronk, Brian Kamoie, Gene Matthews, Georges C. Benjamin, Ralph T. Bryan, Socrates H. Tuch, Richard Gottfried, Jonathan E. Fielding, Fran Schmitz, Stephen Redd

Articles by Maurer Faculty

No abstract provided.

Assessing Laws And Legal Authorities For Public Health Emergency Legal Preparedness, David Fidler, Brian Kamoie, Robert M. Pestronk, Peter Baldridge, Leah Devlin, George A. Mensah, Michael Doney

Articles by Maurer Faculty

No abstract provided.

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure, Stacey A. Tovino

Faculty Articles

In this article I explore the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards (IRBs) charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research …

How Not To Do Medical Malpractice Reform: A Florida Case Study, Mary I. Coombs

Articles

No abstract provided.

Risk Governance And Deliberative Democracy In Health Care, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

I argue in this article that the concept of risk-centered governance is the best theoretical paradigm for understanding health law and the health care system. Over the past 20 years, an insurance-inflected discourse has migrated from the purely financial side of the health system into the heart of traditional medicine - the doctor-patient relationship. Rather than focus on doctrinal strands, I argue that scholars should analyze the law of health care as a set of governance practices organized around managing and allocating financial, as well as clinical, risk.

Over the same period, the body of law that structures most private …

The Law School Clinic As A Partner In A Medical-Legal Partnership, Jane R. Wettach

Faculty Scholarship

No abstract provided.

Does Being A Repeat Player Make A Difference? The Impact Of Attorney Experience And Case-Picking On The Outcome Of Medical Malpractice Lawsuits, Catherine T. Harris, Ralph Peeples, Thomas B. Metzloff

Faculty Scholarship

We begin with Galanter's suggestion that attorneys who are "repeat players" in a specific area of litigation have an advantage over those who are not. Using a combination of data sources we analyze the impact of attorney experience and case characteristics on case outcome of 348 North Carolina medical malpractice lawsuits. We add the insurers' evaluation of liability to the analysis in a limited number of cases (n=72). While plaintiffs' attorney's medical malpractice case experience had an impact, we argue that this must be understood in the context of the plaintiffs' attorney's ability to pick cases in which the insurers' …

Designating Health Care Decisionmakers For Patients Without Advance Directives: A Psychological Critique, Nina A. Kohn, Jeremy A. Blumenthal

Georgia Law Review

States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, the review of empirical research on surrogate decision making in this Article challenges this justification. The authors find that default surrogate statutes do a reasonable job of capturing majority preferences for health care decision making processes, but do not ensure that patients receive the treatment they would have selected for themselves if able. Rather,surrogates appointed under default surrogate statutes can be expected to …

What Do We Have Against Parents?: An Assessment Of Judicial Bypass Procedures And Parental Involvement In Abortions By Minors, Wade Schueneman

Georgia Law Review

It is the established law of the land that minors enjoy a limited right to terminate unwanted pregnancies. States may restrain the exercise of this right by requiring parental consent or notification, but they must allow minors an opportunity to bypass consent requirements. This Note examines the history and present state of judicial and nonjudicial bypass mechanisms. It details the constraints and requirements imposed by state and federal constitutions, assesses the current landscape of parental involvement statutes, and provides prescriptive analysis as to how states might choose to refine and improve their bypass mechanisms to better protect parental rights.

Carlos Cisneros: His Life, Career, & Contributions, Susan Kelly, Jerold Widdison

Water Matters!

State Senator Carlos Cisneros links New Mexico’s past, present and future.

Access This: Why Institutions Of Higher Education Must Provide Access To The Internet To Students With Disabilities, Nina Golden

Vanderbilt Journal of Entertainment & Technology Law

No one questions whether the ADA applies to institutions of higher education. Title II applies to public colleges and universities, while Title III applies to private ones. With some exceptions, colleges and universities must make their programs and services accessible by providing reasonable accommodations to students with disabilities. What is significantly less clear, and thus the topic of dispute among courts and commentators, is whether the ADA requires colleges and universities to provide access to the Internet to students with disabilities. Much of the dispute revolves around the meaning of the term "place of public accommodation." Some courts have required …

Obesity, Poverty, And The Built Environment: Challenges And Opportunities, Wendy Collins Perdue

Law Faculty Publications

Obesity is linked to behaviors related to food consumption and physical activity. Although the factors affecting behaviors in these areas are complex, there is growing evidence that the physical characteristics of many of our communities, and particularly poorer communities, encourage obesity-generating behaviors including a sedentary lifestyle arid unhealthy eating habits. This paper explores the relationship between obesity causing behavior and the physical characteristics of communities and highlights some of the challenges and opportunities associated with changing those physical characteristics.

Social Justice And Health Care Management: An Elusive Quest?, George P. Smith Ii

Scholarly Articles

Contemporary debate on health care resource management is tied to a central moral issue: namely, how to achieve an optimum level of reasonable or appropriate treatment based on the medical condition of each patient. Failing to tackle and resolve this issue in a confident and forthright manner assures the present approach to health care decision making to continue in a state of indecisiveness if, indeed, not lethargy.

Undergirding this moral issue is the foundational economic dilemma of controlling costs while limiting access to health care resources. Finding a just solution to an equitable distribution of finite health care resources is …