Health Law and Policy Commons^™

Sanitation: Reducing The Administrative State’S Control Over Public Health, Lauren R. Roth

Scholarly Works

On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and …

Approaches To Sea Level Rise And International Law: A Comparative View Of Emerging Policy Responses By The African And The Americas Regions, Charles Chernor Jalloh

Articles

No abstract provided.

Sb 140 - Treatment Of Gender Dysphoria In Minors, Kathleen Kassa, Alexander J. Merritt

Georgia State University Law Review

The Act adds two new subsections that prohibit licensed physicians, hospitals, and related institutions from performing or providing certain forms of gender‑affirming medical treatment, while also defining mechanisms for promulgating and enforcing new prohibitions and exceptions allowing such treatment.

Call Me, Beep Me, If You Want To Reach Me: Utilizing Telemedicine To Expand Abortion Access, Samantha A. Hunt

Vanderbilt Law Review

In June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization. The decision confirmed what the public already knew. An anonymously leaked draft version of what ultimately became Justice Samuel Alito’s majority opinion had braced the country for Dobbs’s keyholding. Overturning decades of precedent, the Court found that there is no right to abortion in the United States Constitution. Shortly thereafter, states began implementing restrictions and near-total bans on abortion. These laws had an immediate effect on the safety of pregnant people. In Tennessee, a state where abortion is now outlawed, one woman had …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

Law Student Publications

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Ai Regulation In Health Care: How Washington State Can Conquer The New Territory Of Ai Regulation, Natalie Shen

Seattle Journal of Technology, Environmental, & Innovation Law

1. The use of artificial intelligence both generally and in the health care field has exploded over the last decade. AI is now used in the health care field in areas like disease diagnostics, patient engagement, and administrative tasks. In disease diagnostics specifically, AI is being used to make life-altering diagnoses. This technology, however, does not come without its risks. Specifically, inherent bias is deeply rooted in the AI algorithms. This is because humans are inherently bias, and humans are the people creating the AI algorithms. The problem is, however, is that there are no federal regulations to mitigate the risks …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Trust The Science But Do Your Research: A Comment On The Unfortunate Revival Of The Progressive Case For The Administrative State, Mark Tushnet

Indiana Law Journal

This Article offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific inquiries showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects …

Domestic Emergency Pretexts, Amy L. Stein

Indiana Law Journal

Whereas emergencies used to be the exception to the rule, they now seem to be the norm. Wildfires, hurricanes, flooding, and contagious diseases dominate our daily lives. Although these are not the traditional types of military emergencies of our past, these non-wartime emergencies can trigger some of the same emergency powers. And with their use comes some of the same concerns about abuses of such emergency powers. Much ink has been spilled analyzing the tradeoffs associated with necessary emergency powers and frequent abuses in the context of foreign threats—resulting in reduced privacy, civil liberties, and freedoms.

This Article is not …

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

New York Mental Hygiene Law Article 81 Proceedings: A Proposal To Better Protect The Best Interests Of An Alleged Incapacitated Person, Casey Marsh

Touro Law Review

Guardianship proceedings under New York Mental Hygiene Law Article 81 are intended to protect the personal needs and property management of an alleged incapacitated person. A guardian appointed for a person is responsible for making decisions in line with the best interests and wishes of his or her ward. While guardians serve a very important purpose, the current procedures of guardianship proceedings allow too much room for family members to bring a proceeding without the alleged incapacitated person’s best interests in mind. Often, people bring guardianship proceedings to fish for information on family members or to circumvent a future Surrogate’s …

Public Health Law’S Digital Frontier: Addictive Design, Section 230, And The Freedom Of Speech, Matthew B. Lawrence

Faculty Articles

This Article argues that, even if courts are unpersuaded by the broadest arguments in favor of a public health approach to regulation of addictive design, they should nonetheless reject the platforms’ efforts to make addictive design a public-health-law-free zone. The public health and internet paradigms can be reconciled as a policy matter because addictive design threatens both public health and innovation online. The public health and internet paradigms can also be reconciled as a legal matter be-cause even strong theories of section 230 and the First Amendment, properly understood, leave states a safe harbor in which to regulate much addictive …

Climate Security Insights From The Covid-19 Response, Mark P. Nevitt

Faculty Articles

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

Addiction And Liberty, Matthew B. Lawrence

Faculty Articles

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone …

Model Legal Processes For Court Ordered Mental Health Treatment - A Modern Approach, Brian D. Shannon

FIU Law Review

The United States Conference of Chief Justices and Conference of State Court Administrators established the National Judicial Task Force to Examine State Courts’ Response to Mental Illness in 2019. As part of its overall efforts, the National Judicial Task Force then partnered with the Equitas Project of Mental Health Colorado to appoint a select workgroup to develop model statutory language for court-ordered mental health treatment, emergency psychiatric intervention, medication over objection, and criminal matters involving persons with mental illness. This Model Legal Processes Workgroup included judges, psychiatrists, medical school professors, law professors, and others whose goal was to draft model …

Interagency Dynamics In Matters Of Health And Immigration, Medha D. Makhlouf

Faculty Scholarly Works

When Congress delegates authority to an executive agency, it tells us something important about the expertise that Congress wishes to harness in policymaking on an issue. In the legal literature on interagency dynamics and cooperation, issues at the nexus of health and immigration are largely understudied. This Article extends this literature by examining how delegations of authority on issues at the intersection of health and immigration influence policymaking. In an analysis of how administrative law models apply to three topics in the shared regulatory space of the Department of Health and Human Services (“HHS”) and the Department of Homeland Security …

Privacy For Student-Patients: A Call To Action, Stacey A. Tovino

Emory Law Journal

Consider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Prescribing Exploitation, Charlotte A. Tschider

Faculty Publications & Other Works

Patients are increasingly reliant temporarily, if not indefinitely, on connected medical devices and wearables, many of which use artificial intelligence (“AI”) infrastructures and physical housing that directly interacts with the human body. The automated systems that drive the infrastructures of medical devices and wearables, especially those using complex AI, often use dynamically inscrutable algorithms that may render discriminatory effects that alter paths of treatment and other aspects of patient welfare.

Previous contributions to the literature, however, have not explored how AI technologies animate exploitation of medical technology users. Although all commercial relationships may exploit users to some degree, some forms …

Dobbsmacked By The Dobbs Decision: The Need For More Privacy Protection For Personal Health Information, Morgan Vanden Heuvel

Mitchell Hamline Law Review

No abstract provided.

The Surprising Harms Hidden Within The No Surprises Act, Madeleine Amick-Kehoe

Mitchell Hamline Law Review

No abstract provided.

Access To Medicines And Pharmaceutical Patents: Fulfilling The Promise Of Trips Article 31bis, Ezinne Mirian Igbokwe, Andrea Tosato

Fordham Law Review

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has long stood accused of reducing access to medicines for the poorest and most vulnerable nations. Enacted in 1994 as one of the founding pillars of the World Trade Organization, TRIPS has enabled pharmaceutical companies to enforce their patent rights in almost every country, precluding cheaper generics from being distributed, save for very limited exceptions.

But in 2001, TRIPS was amended expressly to address this issue, allowing countries with limited resources to lodge a formal request to obtain patented medicines at a sustainable cost. Generics manufacturers worldwide can answer this …

Limiting Overall Hospital Costs By Capping Out-Of-Network Rates, David Orentlicher, Kyra Morgan, Barak Richman

Scholarly Works

Contract theory offers a simple and wildly effective solution to surprise bills: Hospital admissions contracts are contracts with open price terms, which contract law imputes with market rates. This solution not only obviated the costly, time-consuming, and complicated (and still unimplemented) legislative fix in the No Surprises Act, but it also is a superior solution since it introduces superior incentives to disclose, compete, and economize.

Using data from the Nevada Department of Health and Turquoise Health, this paper explores the theory and empirics of employing contract law's solution to hospital surprise bills and its superiority over other legislative interventions.

Election Emergencies: Voting In Times Of Pandemic, Michael T. Morley

Washington and Lee Law Review

Over the past century, two global pandemics have struck during American elections—the Spanish Flu of 1918 and COVID-19 in 2020. The legal system’s responses to those pandemics, occurring against distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to address the impact of election emergencies, including public health crises, on the electoral process. States should adopt election emergency laws that both empower election officials to modify an election’s rules as necessary to respond to such disasters and set forth “redlines” to identify certain policies that, even in a disaster, are too …

Supported Decision-Making And Merciful Health Care Access: Respecting Autonomy At End Of Life For Individuals With Cognitive Disabilities, Brenna M. Rosen

Washington and Lee Law Review

Supported decision-making is a relatively new, powerful, and quickly developing alternative to restrictive guardianships and other draconian surrogate decision-making arrangements for individuals with cognitive disabilities. Its power lies specifically in the protection and affirmation of their autonomy, allowing these individuals to remain central in the planning of their lives and affairs. Despite supported decision-making’s theoretical promise, it is often unclear whether and how the model interacts with other legislation presiding over how one may make crucial life choices, such as those at end of life.

This Note attempts to bridge the gap by analyzing how supported decision-making may be a …

Comment: Further Consideration On The Relationship Between The Americans With Disabilities Act, Supported Decision-Making, And Medical Aid In Dying, Amitai Heller

Washington and Lee Law Review

As Ms. Rosen’s Note explains in further detail, the use of supported decision-making creates an opportunity for persons with cognitive impairments to participate more fully in their end-of-life care. While this Comment focuses on the legal requirement for healthcare providers to serve people with cognitive impairments at the end of life, the tenets of patient autonomy, self-determination, and the dignity of risk must be integrated into end-of-life practice to provide guidance where legal requirements are absent or ambiguous. The use of the supported decision-making model in end-of-life care will only succeed when healthcare providers participate in an open-minded manner. It …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Redlining And Opioid Overdose Outcomes: Do Historical Housing Policies Still Impact Health Today?, Sahana Paravantavida

Honors Theses

This study examines the relationship between historical housing policies and current health outcomes, specifically the impact of redlining on opioid overdose rates. Using data collected from the state of New Jersey, neighborhoods with a history of redlining have higher rates of opioid overdose deaths. My findings suggest that historical housing policies, which systematically excluded certain populations from accessing affordable housing and resources, continue to impact health outcomes today.