Health Law and Policy Commons^™

You Get What You Pay For?: Rethinking U.S. Organ Procurement Policy In Light Of Foreign Models, J. Andrew Hughes

Vanderbilt Journal of Transnational Law

The U.S. organ transplant system is in crisis due to the paucity of transplantable organs. Such a shortage exists because otherwise viable organs are too often buried along with the bodies in which they reside. Organs are wasted because the existing U.S. organ transplant system sets up barriers to organ donation--chiefly the legal presumption of unwillingness to donate ("voluntary donation') and the National Organ Transplant Act's ban on the transfer of organs for valuable consideration. This Note surveys the qualified successes of Austria, Belgium, Brazil, and France with their various "presumed consent" models of organ procurement. It also considers other …

Three Ways Of Looking At A Health Law And Literature Class, Jennifer Bard, Thomas W. Mayo, Stacey A. Tovino

Scholarly Works

The authors of this Article participated in a panel at the American Society of Law, Ethics & Medicine Conference in 2008 that discussed the use of literary materials in law school to teach medical ethics (and related matters) in a law school setting. Each author comes at the topic from a different perspective based on his or her own experience and background. This Article and the panel on which it was based reflect views on how literature can play a valuable role in helping law students, as well as medical students, understand important legal and ethical issues and concepts in …

Remarks: Neuroscience, Gender, And The Law, Stacey A. Tovino

Scholarly Works

These remarks, delivered at the Neuroscience, Law, and Government Symposium held at the University of Akron School of Law in 2009, explore how stakeholders are using advances in the neuroscience of three gender-specific and gender-prevalent conditions (the postpartum mood disorders, premenstrual dysphoric disorder, and eating disorders) to secure health care benefits under group health plans and individual health insurance policies and to push for the inclusion of these conditions in mental health parity legislation.

Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino

Scholarly Works

Neuroscience is one of the fastest growing scientific fields in terms of the numbers of scientists and the knowledge being gained. In recent years, both the scope of neuroscience and the methodologies employed by nueroscientists have broadly expanded, from biochemical and genetic analysis of individal nerve cells and their molecular constituents, to the recent neuroscientific achievement in the ability of neuroimaging technoloiges, including funtional magnetic resonance imaging (fMRI), to image brain function. Clinicans and scientists use fMRI not only to map sensory, motor, and cognitive function, but also to study the neural correlates of a range of physical and mental …

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger

Faculty Scholarship

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health …

An Economic Justification For Open Access To Essential Medicine Patents In Developing Countries, Sean Flynn, Aidan Hollis, Mike Palmedo

Scholarly Articles in Law Reviews & Journals

This paper offers an economic rationale for compulsory licensing of needed medicines in developing countries. The patent system is based on a trade-off between the “deadweight losses” caused by market power and the incentive to innovate created by increased profits from monopoly pricing during the period of the patent. However, markets for essential medicines under patent in developing countries with high income inequality are characterized by highly convex demand curves, producing large deadweight losses relative to potential profits when monopoly firms exercise profit-maximizing pricing strategies. As a result, these markets are systematically ill-suited to exclusive marketing rights, a problem which …

Healthy Planet, Healthy People: Integrating Global Health Into The International Response To Climate Change, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

The potentially groundbreaking negotiations currently underway on the international response to climate change and national implementation of commitments under the United Nations Framework Convention on Climate Change (UNFCCC) include a number of hotly contested issues: (1) what degree of climate change is acceptable as a basis for emissions targets, (2) to what extent and in what ways climate change mitigation should incorporate emissions reductions or increased sinks for developing countries, (3) whether the legal regime governing mitigation can take advantage of the huge mitigation potential of changed practices in the land use and agricultural sectors, (4) how adaptation should be …

Patient-Tailored Medicine, Part Two: Personalized Medicine And The Legal Landscape, Corrine Parver

Scholarly Articles in Law Reviews & Journals

In Part One, the authors addressed the relevance of genetic information, and how race and genetics have affected and may impact the development of medicines, pharmacogenomics, and personalized medicine in the United States.* Part Two examines current and proposed federal and state laws and regulations intended to protect individuals from the misuse of genetic information, including uses that discriminate based on genetic predispositions. This Part next explores the potential for litigation against both manufacturers and providers, as well as potential defenses. The authors also discuss legal issues relating to research that relies on the use of genetic information.

After The Revolution: Global Health Politics In A Time Of Economic Crisis And Threatening Future Trends, David P. Fidler

Articles by Maurer Faculty

In 2008, global health’s political revolution, which unfolded over the preceding 10-15 years, ended when four global crises damaged global health and altered the political, diplomatic, and governance contexts in which global health activities operate. The climate change, energy, food, and economic crises revealed limitations in global health’s ability to shape large-scale political, economic, and environmental problems that adversely affect health or harm underlying determinants of health. In addition, projected trends in world affairs potentially threaten health and the ability of countries to craft effective collective action responses to global problems damaging health directly and indirectly. In the post-revolution period, …

"Trap"Ing Roe In Indiana And A Common-Ground Alternative, Dawn E. Johnsen

Articles by Maurer Faculty

Public discourse over abortion overwhelmingly focuses on whether the Supreme Court will overrule Roe v. Wade and states will again ban abortion. But at least since 1992, when the Court in Planned Parenthood v. Casey reaffirmed Roe's "central holding," certain moderate- sounding abortion restrictions - sometimes framed as reasonable compromise regulations - have posed a greater threat to women's reproductive health and liberty. This Essay examines one increasingly popular form of restriction: laws that regulate providers of abortion services in the name of advancing women's health, without actual health justification. Little-noted efforts to enact such restrictions in Indiana, during the …

Remarks: Neuroscience, Gender, And The Law, Stacey A. Tovino

Faculty Articles

These remarks, delivered at the Neuroscience, Law, and Government Symposium held at the University of Akron School of Law in 2009, explore how stakeholders are using advances in the neuroscience of three gender-specific and gender-prevalent conditions (the postpartum mood disorders, premenstrual dysphoric disorder, and eating disorders) to secure health care benefits under group health plans and individual health insurance policies and to push for the inclusion of these conditions in mental health parity legislation.

Kairos And Safe Havens: The Timing And Calamity Of Unwanted Birth, Susan Ayres

Faculty Scholarship

It is impossible to know the number of infants killed or illegally abandoned at birth. No official reporting requirements exist, but conservative estimates claim that in the United States, 150-300 infants are killed within twenty-four hours of life and that over 100 infants are illegally abandoned. Beginning in 1999, in an effort to stem the problem of neonaticide and illegal abandonment, states began enacting laws to legalize abandonment. By 2008, all fifty states had enacted safe haven laws, which allow parents to anonymously abandon newborns by delivering them to designated providers, such as hospitals. This article provides a practical and …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In late winter 2009, the airwaves came alive with stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are the vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother’s well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long …

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This paper explores the commodification of women and biological processes, the confusion of scientific evidence with social agendas, and the conflict between marketing and public health. I assert that key actors in the healthcare marketplace - government, businesses, and doctors – have acted to enable weak medical and scientific evidence to be manipulated by ideological and profit-making partisans in a poorly regulated market. I focus on the unique role of the medical profession, which has acted with government and the private sector to shape the markets in human milk and infant formula. In a striking parallel to the pharmaceutical industry, …

Improving Laws And Legal Authorities For Obesity Prevention And Control, Lawrence O. Gostin, Jennifer L. Pomeranz

Georgetown Law Faculty Publications and Other Works

This is the second paper in a two part series on the laws and legal authorities for obesity prevention and control. In this paper, the authors present the applicable laws and legal authorities that public health professionals and lawyers can consider implementing to close the legal gaps identified in the first paper (“Assessing Laws and Legal Authorities for Obesity Prevention and Control”). This set of legal action items encompass the federal, tribal, state, local, and community levels and should be considered when developing, implementing, and evaluating obesity prevention and control strategies and interventions.

The paper organizes the action items within …

Assessing Laws And Legal Authorities For Obesity Prevention And Control, Lawrence O. Gostin, Jennifer L. Pomeranz, Peter D. Jacobson, Richard N. Gottfried

Georgetown Law Faculty Publications and Other Works

This is the first paper in a two part series on the laws and legal authorities for obesity prevention and control, which resulted from the National Summit on Legal Preparedness for Obesity Prevention and Control in 2008. In this paper, the authors apply the “laws and legal authorities” component of the Centers for Disease Control and Prevention (CDC) legal framework on public health legal preparedness to demonstrate the essential role that law can play in the fight against obesity. Their analysis identified numerous laws and policies in the three vital domains of healthy lifestyles, healthy places, and healthy societies. For …

Why We Should Ignore The “Octomom”, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

Theorizing And Generalizing About Risk Assessment And Regulation Through Comparative Nested Analysis Of Representative Cases, Jonathan B. Wiener, Brendon Swedlow, Denise Kall, Zheng Zhou, James K. Hammitt

Faculty Scholarship

This article provides a framework and offers strategies for theorizing and generalizing about risk assessment and regulation developed in the context of an on-going comparative study of regulatory behavior. Construction of a universe of nearly 3,000 risks and study of a random sample of 100 of these risks allowed us to estimate relative U.S. and European regulatory precaution over a thirty-five-year period. Comparative nested analysis of cases selected from this universe of ecological, health, safety, and other risks or its eighteen categories or ninety-two subcategories of risk sources or causes will allow theory-testing and -building and many further descriptive and …

“Medical” Monitoring For Non-Medical Harms: Evaluating The Reasonable Necessity Of Measures To Avoid Identity Fraud After A Data Breach, James Graves

Richmond Journal of Law & Technology

In July 2005, “reformed” hacker Albert Gonzalez noticed an insecure wireless network at a Marshalls department store in Miami. After exploiting the vulnerability, Gonzalez and his accomplices installed programs that captured credit card numbers. They stored the credit card numbers on servers in Latvia and Ukraine, created ATM cards using some of the numbers, and used those cards to withdraw hundreds of thousands of dollars in cash. Fifteen months later, Marshalls’ parent company, TJX, announced that forty-five million of its customers’ credit card numbers had been exposed to the thieves.

Andy Nuñez: His Life, Career, & Contributions, Bridgette Burbank, Jerold Widdison

Water Matters!

For years and years, reaching back well before his time in the Legislature, Rep. Nuñez has been a strong advocate not only for the state’s people but for its land and water resources.

End-Of-Life Care: Doctors' Complaints And Legal Restraints, Robert L. Schwartz

Faculty Scholarship

Health lawyers and policymakers cannot always see the same shadows of the laws that are visible to health care providers, and sometimes those shadows have penumbras and emanations that are not visible to those outside of a narrow medical practice. Sometimes those shadows, whether real or imagined, cause doctors to act inconsistently with the intent of the law, and inconsistently with the requirements of good medical practice. Doctors may misread or misunderstand a law. Still, if the law as misread or misunderstood actually affects medical practice, we should not be blind to the fact of the misunderstanding. Listen to doctors' …

Reshaping The Common Good In Times Of Public Health Emergencies: Validating Medical Triage, George P. Smith Ii

Scholarly Articles

Public health ethics require individuals who are inherently at risk for transmitting communicable disease to be subjected, oftentimes, to isolation, quarantine, or compulsory vaccination - all undertaken, as such, to protect the common good and thereby secure the public-at-law for exposure to the spread of an infectious disease.

This article tests the extent to which public health emergencies necessitate a reinterpretation or reshaping of the common good and proceeds to analyze the extent to which the medical principle of triage is a relevant construct for allocating scarce medical resources during contemporary public health emergencies. The article proceeds to test the …

Weighing Medical Judgments: Explaining Evidentiary Preferences For Treating Physician Opinions In Erisa Cases After Black & Decker Disability Plan V. Nord, Roy F. Harmon Iii, A.G. Harmon

Scholarly Articles

No abstract provided.

Value-Based Mandated Health Benefits, Amy B. Monahan

University of Colorado Law Review

Mandated health benefit laws figure prominently in health reform debates. These laws, which are primarily enacted by the states, require health insurers to cover specific medical treatment, services, or supplies such as mental health treatment, mammograms, or diabetes testing supplies. Critics argue that mandated health benefit laws increase health insurance costs, decrease consumer choice, and often are the product of rent-seeking, rather than sound public policy. This Article seeks to further the discussion of mandated health benefit laws by systemically identifying permissible rationales for such laws. The justifications identified include addressing (1) market failure that leads to nonavailability of coverage, …