Health Law and Policy | Open Access Articles

Commercial Speech, Drugs, Promotion And A Tailored Advertisement Moratorium, Margaret Gilhooley

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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Truth Or Consequences?: Commercial Free Speech Vs. Public Health Promotion (At The Fda), Lars Noah

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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The Food And Drug Administration V. The First Amendment: A Survey Of Recent Fda Enforcement, Gerald Masoudi, Christopher Pruitt

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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A Veil Of Tax Exemption ?: A Proposal For The Continuation Of Federal Tax-Exempt Status For "Nonprofit" Hospitals, Jeremy J. Schirra

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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When Regulation Becomes Personal: Asserting Retaliatory Enforcement Claims Against Regulatory Agencies, Mark Brian Skerry

Health Matrix: The Journal of Law-Medicine

No abstract provided.

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Comments: A "Familiar" Standard Of Care: What The Same Or Similar Communities Standard Could Mean For Maryland, John M. Williams Jr.

University of Baltimore Law Review

No abstract provided.

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Defining The Role Of Mature Minors In The Medical Research Consent Process, Isabelle M. A. French

LLM Theses

In recent years, there has been an increase in the number of minors included in a broad range of medical research studies. To date, however, little attention appears to have been paid to how the role of minors in the consent process leading to participation in these studies should be defined. This thesis reviews the legal and ethical instruments and principles that define the role of mature minors in the medical research consent process in Canada at present. The thesis goes on to recommend a framework that should be added to the Tri-Council Policy Statement whereby all minors undergo a …

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Embracing The New Geography Of Health Care: A Novel Way To Cover Those Left Out Of Health Reform, Nathan Cortez

Faculty Journal Articles and Book Chapters

Even after landmark health reform in 2010, our health care system will not achieve universal coverage. The Patient Protection and Affordable Care Act is expected to leave 23 million uninsured after a decade. And until several major provisions take effect in 2014, 50 million will remain uninsured. This Article argues that cross-border health insurance plans that utilize foreign medical providers are a surprisingly feasible alternative for the residually uninsured. Cross-border plans can be much less expensive than traditional, domestic-only plans. And they might appeal to immigrants and others that are neither eligible for public plans nor able to afford private …

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Ohio's Aggressive Attack On Medical Identity Theft, Stanley C. Ball

Journal of Law and Health

This note explains the severity of medical identity theft and the state and federal legislative reactions to the problem. Specifically, the note discusses data breach notification statutes that require healthcare providers to notify consumers when the systems holding customer personal information are breached. The note concludes that Ohio’s data breach notification statute, which does not expressly cover healthcare providers, should be amended to protect residents from medical identity theft and provide redress when healthcare providers violate state law.

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Making Language Access To Health Care Meaningful: The Need For A Federal Health Care Interpreters' Statute, Alvaro Decola

Journal of Law and Health

This Note will argue that there are strong public policy, and legal and equity considerations for Congress to enact a federal statute to address the inadequacies of the current policies and regulations pertaining to language access to health care. The issue has become a significant one throughout the United States, given the influx of LEP (Limited English Proficiency) Americans navigating the health care system. Part II of this writing discusses the existing federal laws dealing with language access and the hurdles faced by LEP individuals in bringing legal action, because of existing case law on the subject. Part II also …

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Post-Traumatic Stress Disorder In The Military: The Need For Legislative Improvement Of Mental Health Care For Veterans Of Operation Iraqi Freedom And Operation Enduring Freedom, Madeline Mcgrane

Journal of Law and Health

This Note argues that legislation requiring improved mental health treatment for veterans of OIF (Operation Iraqi Freedom) and OEF (Operation Enduring Freedom) is necessary to protect American service members from the dangers of mental illness. In order to prevent crimes and suicides committed by veterans of OIF and OEF as a result of undiagnosed PTSD (post-traumatic stress disorder), the United States Congress should enact legislation imposing requirements on all branches of the military that: 1) mandates screening of all veterans at risk for PTSD upon their return from deployment; 2) ensures veterans are provided with adequate and timely mental healthcare; …

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Food-Borne Ultimatum: Proposing Federal Legislation To Create Humane Living Conditions For Animals Raised For Food In Order To Improve Human Health, The, Lynn M. Boris

Journal of Law and Health

In order to reduce the large number of human health risks associated with reckless farming practices, Congress must enact federal legislation that requires humane living conditions for farm animals and declares a moratorium on the routine use of unnecessary antibiotics. Part II of this Note will briefly review traditional farming and animal husbandry practices and examine the shift to the modern practices used by producers of animal products today. Part II will also present several farming practices utilized today that are particularly dangerous to human health. Part III of this Note will explore the immense human suffering that is occurring …

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Illinois Nursing Home Reform: Sorting Out The Deadly Mix, Sonia Piacenza

Public Interest Law Reporter

No abstract provided.

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Drug Tests For Welfare: Saving Taxpayer Money Or Flushing It Down The Drain?, Michelle Yoder

Public Interest Law Reporter

No abstract provided.

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Secret Shoppers In Illinois: Uncovering Startling Trends In Access To Healthcare, Kathryn C. Kokoczka

Public Interest Law Reporter

No abstract provided.

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Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Akron Law Faculty Publications

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

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Ambivalence And Activism: Employment Discrimination In China, Timothy Webster

Vanderbilt Journal of Transnational Law

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively …

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Germ Shed Management In The United States, Kevin Outterson

Faculty Scholarship

The U.S. Medicare program reimburses only for discrete treatments of individuals with infections, but fails to pay for infection control or antibiotic stewardship more generally. By focusing solely on discrete hospitals and patients, Medicare ignores the larger epidemiological reality - that hospitals, nursing homes and other institutions operate within a germ shed. Under current Medicare rules, institutions that invest in infection control or antibiotic stewardship, may actually lose money and benefit rival firms in the market. In effect, current Medicare rules subsidize MRSA pollution. Worse yet, Medicare rules block potentially efficient Coasian contracts to promote private coordination within germ sheds.

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A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott

St. Mary's Law Journal

Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …

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Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley

St. Mary's Law Journal

Each year numerous defendants appear in courts located in Texas, both state and federal, charged with offenses related to driving while intoxicated (DWI). Defendants appearing before state courts are prosecuted pursuant to Texas statutes, regulations, and binding case law. In certain circumstances, defendants appearing in federal courts face the same statutory elements of a crime and the same potential penalties as in a Texas state court. In many of the cases, however, statutory elements and potential penalties differ. Furthermore, certain rights and regulations afforded to Texas state defendants are unavailable to those charged in federal courts located in the state. …

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Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …

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Honest Services Fraud After Skilling., Pamela Mathy

St. Mary's Law Journal

The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …

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A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan

St. Mary's Law Journal

The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …

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A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black

St. Mary's Law Journal

When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …

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The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Faculty Scholarship

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual …

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Implementing American Health Care Reform: The Fiduciary Imperative, Dayna Bowen Matthew

Publications

The success of health reform under the Patient Protection and Affordable Care Act of 2010 will depend upon the sustainability of a brand new and infrastructure of entities, relationships, and procedures. So far, neither jurists, legislators, policy-makers, providers, payers, nor patients have identified an organizing paradigm to implement or regulate this vast new infrastructure. Legal scholars have been curiously absent from this policy discussion, offering little if any insight into the role law plays beyond the familiar political debates about health reform. This article draws a legal chair to the table and takes a refined look at the legal basis …

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First, Do No Harm: Response To “If You Prick Me”, Patricia A. Broussard

Journal Publications

Brianna Lennon makes several cogent and persuasive arguments about Female Genital Mutilation (“FGM”) in her recently published Student Note entitled, If You Prick Me: The American Academy of Pediatrics’ Female Genital Cutting Policy Turnabout. She successfully articulates why she believes that by prohibiting FGM, opponents are in effect reinforcing it as a tie to the former culture or country. However, although Ms. Lennon makes some sound points, she overlooks and thereby, fails to answer the most obvious question which is, who owns a woman’s body? If one reaches the conclusion that a woman owns her body, then the logical extension …

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The Coal Miners Have Taken Care Of Us: Let's Now Take Care Of The Coal Miners, Priscilla Norwood Harris

Journal Publications

For over a hundred years, coal has helped power America's economy.' In short, without coal mining no industrial revolution would have occurred. "Coal fueled the new industrial capitalism."' Moreover, from the very beginnings of industrialization in the United States, "Appalachian coal and other fossil fuels have fired the engine of American industry,"' and it was Appalachian coking coal that helped make the steel America needed.' Coal transformed the United States into "an industrial superpower from a virtual wilderness."" This massive use of coal has come at a price to the miners." The death and injury rate from mining is matched …

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Rethinking Addiction: Drugs, Deterrence, And The Neuroscience Revolution, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article connects the debate about addiction with the fundamental criminal law principle of deterrence. It seeks to bridge the gap between the competing medical and criminal justice approaches by exploring addiction in light of recent research about the brain, gender differences, and what works best from both a treatment and justice perspective. To sharpen the issues, the article deliberately focuses on the emotionally freighted subject of pregnant drug users. This approach will illuminate prevailing assumptions about how biological, genetic, cultural, and other environmental factors shape human behavior and challenge conventional understandings of deterrence in light of new research on …

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In Re Miguel M., Jonathan Weinstein

NYLS Law Review

No abstract provided.

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Full-Text Articles in Health Law and Policy

Commercial Speech, Drugs, Promotion And A Tailored Advertisement Moratorium, Margaret Gilhooley

Health Matrix: The Journal of Law-Medicine

Truth Or Consequences?: Commercial Free Speech Vs. Public Health Promotion (At The Fda), Lars Noah

Health Matrix: The Journal of Law-Medicine

The Food And Drug Administration V. The First Amendment: A Survey Of Recent Fda Enforcement, Gerald Masoudi, Christopher Pruitt

Health Matrix: The Journal of Law-Medicine

A Veil Of Tax Exemption ?: A Proposal For The Continuation Of Federal Tax-Exempt Status For "Nonprofit" Hospitals, Jeremy J. Schirra

Health Matrix: The Journal of Law-Medicine

When Regulation Becomes Personal: Asserting Retaliatory Enforcement Claims Against Regulatory Agencies, Mark Brian Skerry

Health Matrix: The Journal of Law-Medicine

Comments: A "Familiar" Standard Of Care: What The Same Or Similar Communities Standard Could Mean For Maryland, John M. Williams Jr.

University of Baltimore Law Review

Defining The Role Of Mature Minors In The Medical Research Consent Process, Isabelle M. A. French

LLM Theses

Embracing The New Geography Of Health Care: A Novel Way To Cover Those Left Out Of Health Reform, Nathan Cortez

Faculty Journal Articles and Book Chapters

Ohio's Aggressive Attack On Medical Identity Theft, Stanley C. Ball

Journal of Law and Health

Making Language Access To Health Care Meaningful: The Need For A Federal Health Care Interpreters' Statute, Alvaro Decola

Journal of Law and Health

Post-Traumatic Stress Disorder In The Military: The Need For Legislative Improvement Of Mental Health Care For Veterans Of Operation Iraqi Freedom And Operation Enduring Freedom, Madeline Mcgrane

Journal of Law and Health

Food-Borne Ultimatum: Proposing Federal Legislation To Create Humane Living Conditions For Animals Raised For Food In Order To Improve Human Health, The, Lynn M. Boris

Journal of Law and Health

Illinois Nursing Home Reform: Sorting Out The Deadly Mix, Sonia Piacenza

Public Interest Law Reporter

Drug Tests For Welfare: Saving Taxpayer Money Or Flushing It Down The Drain?, Michelle Yoder

Public Interest Law Reporter

Secret Shoppers In Illinois: Uncovering Startling Trends In Access To Healthcare, Kathryn C. Kokoczka

Public Interest Law Reporter

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Akron Law Faculty Publications

Ambivalence And Activism: Employment Discrimination In China, Timothy Webster

Vanderbilt Journal of Transnational Law

Germ Shed Management In The United States, Kevin Outterson

Faculty Scholarship

A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott

St. Mary's Law Journal

Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley

St. Mary's Law Journal

Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Honest Services Fraud After Skilling., Pamela Mathy

St. Mary's Law Journal

A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan

St. Mary's Law Journal

A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black

St. Mary's Law Journal

The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Faculty Scholarship

Implementing American Health Care Reform: The Fiduciary Imperative, Dayna Bowen Matthew

Publications

First, Do No Harm: Response To “If You Prick Me”, Patricia A. Broussard

Journal Publications

The Coal Miners Have Taken Care Of Us: Let's Now Take Care Of The Coal Miners, Priscilla Norwood Harris

Journal Publications

Rethinking Addiction: Drugs, Deterrence, And The Neuroscience Revolution, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

In Re Miguel M., Jonathan Weinstein

NYLS Law Review