Medical Jurisprudence Commons^™

Buyer, Beware Of Addiction, Erin E. Meyers, Clayton J. Masterman

Cardozo Law Review

Addictive products kill more than 700,000 people in the United States every year. Despite the large-scale risks that addiction poses, the law requires manufacturers of addictive products to disclose little-to-no information about the risk of addiction—the single most consequential characteristic of a class of products contributing to mass death every year.

While consumers understand that addictive products are, in fact, addictive, they generally do not understand the magnitude of the addiction risks that they face. Metaphorically, consumers understand that they are playing a game of “Russian roulette” when they consume an addictive product—but they play without knowing how many bullets …

The End Of Fda Exceptionalism? Dissecting Deference To The Fda In Drug Disputes, Anjali Deshmukh

Cardozo Law Review

On April 7, 2023, a federal judge issued a nationwide stay on the United States Food and Drug Administration (FDA) approval of the abortifacient medication mifepristone. It was instantly a landmark case, decried as the first time in over one-hundred years that a federal court nullified an FDA drug approval. A few hours later, a second federal district court enjoined FDA restrictions on mifepristone. Two federal courts substantively evaluating FDA drug approval data in one day is unprecedented. It begs the question: will courts overturn FDA drug approvals again?

Conventional wisdom says no. Abortion exceptionalism, the trend of legislatures and …

Anyone You Are Related To Can Be Used Against You: Criminal Discovery Statutes And Investigative Genetic Genealogy, Caroline Levine

Cardozo Law Review

The use of investigative genetic genealogy (“IGG”) as a basis for arresting suspects in complex and dormant investigations is raising serious concerns about whether the due process rights of criminal defendants in these cases are being violated. This Note provides a comprehensive look at the role of this groundbreaking, yet little-understood technology in criminal prosecutions. Technological advances have historically necessitated that courts expand and reinterpret legal principles. As a novel derivative of traditional DNA testing, this Note argues IGG should similarly require that discovery statutes be amended or rewritten to adapt to this cutting-edge technique, which is so new that …

Emotionally Harmed? It Might Not Matter: An Analysis Of Cummings V. Premier Rehab Keller And Its Implications For Title Ii Of The Americans With Disabilities Act Of 1990, Sotir Zhupa

Cardozo Law Review

On April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..

Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate …

Growth Beyond Its Limits - How Much Growth Is Too Much For The Purpose Of The Local Government Antitrust Act Of 1984?, Katherine Stern

Cardozo Law Review

No abstract provided.

Confidentiality Over Privacy, Stacey A. Tovino

Cardozo Law Review

No abstract provided.

Pregnancy Advance Directives, Joan H. Krause

Cardozo Law Review

No abstract provided.

Why A New Deal Must Address The Readability Of U.S. Consumer Contracts, Michael L. Rustad

Cardozo Law Review

United States companies are increasingly drafting consumer contracts that are complex and unreadable, thus making it difficult for many Americans to comprehend terms of use that apply to goods and services. Many U.S. companies are creating terms of use that are, in effect, rights-foreclosure schemes. Many consumer agreements cap damages at a nominal amount, disclaim all warranties, limit remedies, and impose mandatory arbitration clauses and class action waivers. U.S. courts enforce these unfair mass-market contracts with few exceptions. My proposal for a New Deal for Consumer Contracts, as described in this Article, would impose a more exacting readability standard, enforcing …

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Cardozo Law Review

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Before and after they understand language, they learn by observing and imitating the actions of their parents. For almost fifty years, Roe v. Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

Beyond Data Ownership, Ignacio Cofone

Cardozo Law Review

Proposals for data ownership are widely misunderstood, aim at the wrong goal, and would be self-defeating if implemented. This Article, first, shows that data ownership proposals do not argue for the bundle of ownership rights that exists over property at common law. Instead, these proposals focus on transferring rights over personal information solely through consent.

Second, this Article shows the flaws of a property approach to personal information. Such an approach magnifies well-known problems of consent in privacy law: asymmetric information, asymmetric bargaining power, and leaving out inferred data. It also creates a fatal problem: moral hazard where corporations lack …

"What Makes You Think You Can Do That?": How Venue Restrictions Prevent Access To Abortion For Minors In Arkansas, Bella Mancini Pori

Cardozo Law Review

No abstract provided.

Patent Eligibility And Investment, David O. Taylor

Cardozo Law Review

Have the Supreme Court's recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors' answers to those important questions. Analyzing responses to a survey of475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court's recent cases have influenced these firms' decisions to invest in companies developing technology. The survey results reveal investors' overwhelming belief that patent eligibility is an important consideration in investment decision making, and that reduced patent eligibility makes it less likely …

Civil Rico: An Effective Deterrent To Fraudulent Asbestos Litigation?, Lester Brickman

Cardozo Law Review

In January 2014, U.S. Bankruptcy Judge George Hodges, presiding over the asbestos-related bankruptcy of Garlock Sealing Technologies, LLC, a manufacturer of gaskets containing asbestos, issued an order estimating Garlock's liability for pending and future mesothelioma cases. Judge Hodges, after hearing evidence discovered by Garlock in a sampling of settled cases, rejected using the usual bankruptcy court recourse to the debtor's historic settlement values as a valid basis for estimating Garlock's total future liability for asbestos-related injuries. He found that Garlock's prior mesothelioma settlements were not a reliable predictor of Garlock's liability because those settlements had been infected by misrepresentations by …

Familial Searching: How Implementing Minimum Safeguards Ensures Constitutionally-Permissible Use Of This Powerful Investigative Tool, Alexandra Nieto

Cardozo Law Review

This Note supports the adoption of Familial DNA Search Policies. by states that have not yet taken a position on the issue. Part I of this Note provides background on the role of Familial Searches in criminal investigations. This includes a discussion on the nature of Familial Searches, why they are useful, and the current state of the law. Part I also considers the different guidelines and protections in existing Familial Search Policies, as well as states' policies regulating their DNA databases. Part II discusses the Fourth Amendment and equal protection concerns implicated by Familial Searches and how a court …

The Futility Of Futility: An Analysis Of The Charlie Gard Case Within The Framework Of U.S. Law, Elana Bengualid

Cardozo Law Review

No abstract provided.

How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis

Cardozo Law Review

Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation "subterranean …

The Local Rules Revolution In Criminal Discovery, Daniel S. Mcconkie

Cardozo Law Review

Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts.

Commentators have long recognized that neither Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to properly …

Refusing To Treat Noncompliant Patients Is Bad Medicine, Jessica Mantel

Cardozo Law Review

Government health programs and private payors have adopted various reforms that fundamentally transform the physician-patient relationship. Public reporting on how well physicians perform on various quality and cost metrics, as well as payment reforms that link physicians' reimbursements to their performance on these metrics, incentivize physicians to improve the quality and efficiency of care they provide to patients. Less appreciated, however, is that these reforms also create strong incentives for physicians to reject patients who do not abide by their physician's medical opinion, including recommendations that the patient adopt healthier behaviors. These noncompliant patients increasingly willfind themselves rejected by physicians, …

Pre-Embryo Custody Battles: How Predisposition Contracts Could Be The Winning Solution, Ashley Alenick

Cardozo Law Review

The note examines the legal disputes arising from the disposition of frozen preembryos during divorce, highlighting the lack of consensus among U.S. courts in resolving such cases. It evaluates three legal approaches—constitutional analysis, contemporaneous agreement, and predisposition contracts—and argues that enforcing predisposition contracts, akin to prenuptial agreements, offers the most structured solution. However, the note emphasizes the need for procedural and substantive fairness in these contracts to ensure they are voluntary, fully disclosed, and do not unjustly prevent genetic parenthood.

Two-Stepping Around A Minor's Constitutional Right To Abortion, Wendy-Adele Humphrey

Cardozo Law Review

A woman's constitutional right to abortion was first generally established in the U.S. Supreme Court decision in Roe v. Wade, and a female minor has the same right to abortion. In the majority of states, however, pregnant young women are required to either notify their parents or to get their parents' consent before obtaining a safe, legal abortion. These parental involvement laws do not infringe on a minor's constitutional right to abortion if a proper 'judicial bypass" proceeding is available. But in Texas, the recently amended judicial bypass law imposes additional extensive-possibly unconstitutional-restrictions on a pregnant minor who seeks a …

Informed Consent And Privacy Of Non-Identified Bio-Specimens And Estimated Data: Lessons From Iceland And The United States In An Era 1251 Of Computational Genomics, Donna M. Gitter

Cardozo Law Review

This Article analyzes issues of informed consent and patient autonomy raised by advances in bioinformatics and computational genomics. The Article describes the increasing use in biomedical research of estimated data. Researchers are able to use genetic and genealogical data from research subjects, who did agree to participate in genetic testing, in order to make educated guesses about the genetic profiles of their relatives who did not volunteer to participate. This estimated data can then be combined with health records of the non-volunteers in order to conduct computational genetic research, often termed "in silico" biology, without their informed consent. The Article …

Technological Opacity, Predictability, And Self-Driving Cars, Harry Surden, Mary-Anne Williams

Cardozo Law Review

Autonomous or "self-driving" cars are vehicles that drive themselves without human supervision or input. Because of safety benefits that they are expected to bring, autonomous vehicles are likely to become more common. Notably, for the first time, people will share a physical environment with computer-controlled machines that can both direct their own activities and that have considerable range of movement. This represents a distinct change from our current context. Today people share physical spaces either with machines that have free range of movement, but are controlled by people (e.g. automobiles) or with machines that are controlled by computers, but highly …

Securing Sequences: Ensuring Adequate Protections For Genetic Samples In The Age Of Big Data, Elizabeth R. Pike

Cardozo Law Review

Bulk collection of our personal data is increasingly common. Our internet browser history leads to personalized, targeted advertising; credit card companies aggregate billions of our collective transactions to gain insight into our spending patterns; and, as recently revealed, the National Security Agency engaged in the widespread collection of our telephone data without our knowledge or consent. But what if the data being collected, stored, shared, and used without our knowledge or consent is arguably the most personal of all data - our unique genetic sequence? In ways underreported and underexamined, the genetic information of nearly every American is likely to …

Big Data, Patents, And The Future Of Medicine, W. Nicholson Price Ii

Cardozo Law Review

Big data has tremendous potential to improve health care. Unfortunately, intellectual property law isn't ready to support that leap. In the next wave of data-driven medicine, black-box medicine, researchers use sophisticated algorithms to examine huge troves of health data, finding complex, implicit relationships and making individualized assessments for patients. Black-box medicine offers potentially immense benefits, but also requires substantial high investment. Firms must develop new datasets, models, and validations, which are all nonrivalrous information goods with significant spillovers, requiring incentives for welfare-optimizing investment.

Current intellectual property law fails to provide adequate incentives for black-box medicine. The Supreme Court has sharply …

From Patient Rights To Health Justice: Securing The Public's Interest In Affordable, High-Quality Health Care, Lindsay F. Wiley

Cardozo Law Review

Models emphasizing professional autonomy, patient rights, market power, and health consumerism are no longer adequate to address the increasingly social, collective nature of health law institutions, instruments, and norms. What is needed is a new model that expressly recognizes the public - alongside the patient, the provider, and the payer - as an important stakeholder and active participant in decisions about medical treatment, health care coverage, and allocation of scarce resources. In a previous article, the author looked to the environmental justice, reproductive justice, and food justice movements for inspiration in developing a "health justice" approach to eliminating social disparities …

The Process Is Still The Punishment: Low-Level Arrests In The Broken Windows Era, Amanda Geller

Cardozo Law Review

Purpose: This Article examines the experience of contemporary arrestees in New York City to identify impositions they face in the processing of charges against them. In his seminal 1979 study The Process Is the Punishment, Malcolm Feeley documented severe administrative burdens faced by arrestees before judgment of guilt or innocence. I investigate the persistence of this dynamic in light of modern "proactive policing" tactics that bring millions of people into contact with the criminal justice system.

Methods: I match records of police encounters with court data on arrest processing to construct a unique dataset tracing more than 100,000 arrests …

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

When Should Physicians Be Liable For Innovation?, Anna B. Laakmann

Cardozo Law Review

Uncertainty pervades medicine. It is particularly acute when a physician deliberately deviates from generally accepted practices in an attempt to improve patient care. Unlike innovative drug and device manufacturers, treating physicians are not subject to mandatory ex ante public regulation. The question of how to constrain physician behavior thus largely falls to the tort system. Innovation by definition involves a departure from custom, so adherence to customary standards of care essentially requires physicians to solely bear the liability costs of innovative treatment. This regime, of course, protects patients from unnecessary risks associated with untested therapies, but may also unduly deter …

Testing The Boundaries Of Family Privacy: The Special Case Of Pediatric Sibling Transplants, Doriane Lambelet Coleman

Cardozo Law Review

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister's availability as an organ source. There are other transplant options - including the parents - but because the twins' skin is "equivalent," a "sibling transplant" is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister's skin on "her backside from her bra line down to the bottom of her buttocks or possibly her thighs." This procedure would be …

Physician Speech And Mandatory Ultrasound Laws: The First Amendment's Limit On Compelled Ideological Speech, Jennifer M. Keighley

Cardozo Law Review

Since Planned Parenthood v. Casey opened the door to more pervasive state regulation of abortions, states have increasingly used their regulatory power to coerce physician speech. The Supreme Court has not yet explained, however, whether and how physicians' First Amendment rights limit such attempts to coerce state-mandated speech. This Article argues that while the precise contours of physicians' First Amendment rights have yet to be articulated, physicians certainly retain the core First Amendment right to refuse to speak the state's ideological messages. I then evaluate whether mandatory ultrasound laws, which require a physician to perform an ultrasound exam and to …