Medical Jurisprudence Commons^™

Cracking The Façade: Analyzing Ohio's "Don't Say Gay" Legislation As Disguised Discrimination Under The First And Fourteenth Amendments, Sydni L. Porter

Journal of Law and Health

The Ohio State Legislature is among the growing nationwide trend in attacking LGBTQ+ rights. Chief among these is Ohio House Bill 8, which claims to limit the types of content children encounter in schools. While the drafters cite this noble intent, the bill's actual impact further harms queer students and teachers, who already bear heavier mental health burdens due to such legislation and its societal implications. This type of legislation recently originated in Florida, where it was signed into law by Governor Ron DeSantis in 2022 and garnered national media attention. As Ohio Governor Mike DeWine signed a near-identical bill …

Brain-Dead Surrogacy And Testamentary Disposition: Legal Rights Over One’S Body For Reproductive Purposes, Cassandra L. Nelson

Vanderbilt Law Review

Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities …

Washington's Implementation Of Legalized Cannabis: A Model For Other States And The Federal Government, Bruce Turcott, Daniel Shortt

Washington Law Review

This Article examines the process and outcomes of cannabis legalization in Washington State, offering insights for other states and potential federal legalization schemes. It begins with an overview of the campaign that led to the passage of Initiative 502 (I-502), detailing the initiative’s structure, which draws from liquor licensing laws. The Article then explores the establishment of a recreational cannabis market from scratch, focusing on agency structure, federal responses such as the Cole Memorandum, and the state’s regulatory framework aimed at preventing adverse outcomes.

Additionally, this Article highlights Washington’s efforts to promote social equity, emphasizing that I-502 was framed as …

The Ultra (And Nearly Ultra) Locality Rules Persist! Why Continue To Ignore Modern Medicine And Contort The Standard Of Care?, Marc D. Ginsberg

Journal of Law and Health

The use of the locality rule to define or modify the medical standard of care is inconsistent with modern medicine. Nevertheless, various states in the U.S. continue to adhere to a locality rule. This paper revisits this topic, about which I have previously written, by focusing on Idaho, Nebraska, Tennessee and Arkansas. The paper concludes by suggesting that locality rules should be eliminated in favor of a national standard of care.

Cannabis In The Clink: An Argument In Favor Of Medical Marijuana For Disabled Inmates, Sophia Dechurch

Journal of Law and Health

In recent decades, medical marijuana programs have become commonplace, and most states in the United States of America are ready to accept marijuana as a natural alternative to treat symptoms of certain conditions such as chronic pain, cancer, mental illness, multiple sclerosis (MS), HIV/AIDS, and substance use disorder; as such, medical marijuana is readily accessible to those who have a qualifying diagnosis – the exception being those who are incarcerated. Although disability, substance abuse, and mental illness are prevalent among those under state supervision, these individuals are effectively prohibited from enjoying the benefits of medical marijuana. This Note will provide …

Public Funds, Public Functions, Private Actors: The Cognitive Dissonance Of Us Health Law, William M. Sage

Faculty Scholarship

This chapter begins with the evolution of American medicine from a “sovereign” self-regulating profession focused on direct patient service to a large industry that serves the social sector but that, because of its professional heritage, receives extensive public subsidies without equivalent public accountability. Next, the chapter identifies regulatory dynamics in American health care governance that structurally discourage movement from the prevailing, if dissonant, private law framework to one explicitly grounded in public law. The chapter concludes by highlighting the challenges and opportunities inherent in a private law approach to what is intuitively a public law domain.

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 …

Abortion Training In Family Medicine: A Post-Dobbs Examination, Innes Tounkel, Lauren Kasoff, Brittany Macdonald, Krys Foster, Allison Casola, Glen Atlas

Cooper Rowan Medical Journal

No abstract for this article type.

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Who Regulates Abortion Now?, Nathan G. Cortez, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

Contrary to both conventional wisdom and recent Supreme Court pronouncements, abortion is not simply a matter of state oversight. For a quarter century now, the federal government has been intimately involved in “regulating” abortion through the U.S. Food and Drug Administration’s approval and continued oversight over mifepristone and other abortion medications. This Article considers the extent to which federal abortion law both coexists and conflicts with state law, as it does with most areas of medicine. We evaluate which body of law is better able at achieving the goals of modern medicine that is evidence-based, ethical, consistent, and individualized.

Who Decides: The Role Of Parental Rights In Abortion And Gender-Affirming-Care Decisions For Minors, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The American legal system presumes that children’s interests are best protected by their parents and, secondarily, by the state’s parens patriae authority. Yet this structure falters when parental authority and state power are infused with political and ideological agendas. This Essay examines how these dynamics have distorted decision-making authority in two contexts—minors’ access to abortion and gender-affirming medical care—and allowed children’s welfare and autonomy to be sacrificed to partisan aims. The law is inconsistent on the role of parental rights—typically empowering parents to grant or withhold consent to a minor’s abortion but categorically stripping them of the power to consent …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Revoluntionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan Wolf, Francis X. Shen

Articles

Introduction

New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial.

Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns.

Methods & Results

We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Medicare Mandates For Shared Decision Making With Patient Decision Aids: Linking Payment To Preference, Thaddeus Pope

Faculty Scholarship

Since 2015, the Centers for Medicare and Medicaid Services (CMS) has increasingly required shared decision making with evidence-based patient decision aids as an essential Medicare condition for payment. CMS is doing this because it recognizes that most healthcare is preference sensitive and value laden. So, whether treatment is “right” or “beneficial” for a patient is not only a matter of clinical expertise. It equally depends on the patient’s values, preferences, and goals. So, CMS wants to ensure that patients understand the risks, benefits, and alternatives to the healthcare that they receive and for which CMS pays. In short, under its …

Characterization Of Litigation After Tympanoplasty And Mastoidectomy In The United States, Alyssa D. Reese, Lauren A. Dinardo, Soumya Gupta, Kristina F. Powers, Samuel Colca, Michele M. Carr

Department of Otolaryngology (ENT) Faculty Publications

Introduction

Tympanoplasty and mastoidectomy are common procedures performed by otolaryngologists that can result in complications for which patients may seek compensation. Medical malpractice case analyses may offer insight into how clinicians can avoid risk and improve patient satisfaction. We aimed to comprehensively characterize litigation after mastoidectomies and tympanoplasties in the United States.

Methods

The Westlaw Campus Research legal database was searched for all available court decisions associated with claims of medical malpractice after tympanoplasty and/or mastoidectomy in the United States between 1975 and 2022. Information on the plaintiffs' relationships to the patients, patient characteristics, states where the procedures took place, …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Compelled Contraception, Lars Noah

UF Law Faculty Publications

Can the federal government insist that people use contraceptives? It may come as a surprise to learn that the U.S. Food and Drug Administration (FDA) has done just that as a condition for allowing access to some pharmaceutical products that create a serious risk of birth defects. Over the last few decades, the agency has demanded that patients using certain teratogenic agents—now numbering over a dozen drugs prescribed for a variety of conditions, ranging from severe acne and psoriasis to multiple myeloma and pulmonary hypertension—agree to avoid becoming pregnant, sometimes for years after completing their course of treatment. Undoubtedly the …