Health Law and Policy Commons^™

An Essay On Torts: States Of Argument, Marshall S. Shapo

Pepperdine Law Review

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the “states of argument” that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the traditional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

International Tobacco Litigation's Evolution As A United States Torts Law Export: To Canada And Beyond?, Richard L. Cupp Jr.

Pepperdine Law Review

In the late 1990’s, the states’ healthcare reimbursement lawsuits against the tobacco industry were settled for approximately $246 billion. In the wake of this enormous settlement, many similar lawsuits were initiated in other nations or by other nations. Most of these early healthcare reimbursement lawsuits failed. However, in 2005, the World Health Organization Framework Convention on Tobacco Control was finalized by over 150 nations, and today has been ratified by 168 nations. The Framework encourages nations to consider tort litigation against tobacco sellers as a way to limit tobacco usage. Canada’s provinces have been particularly aggressive in seeking to use …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Cornell Law Faculty Publications

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being …

Department Of Health And Human Services V. Florida: Brief Of Law Professors Barry Friedman, Matthew Adler, Et Al., As Amici Curiae In Support Of Petitioners And Reversal On The Minimum-Coverage Provision Issue, Richard Primus

Appellate Briefs

Amici are law professors (listed in Appendix A) who have taught, studied, written about, and have expertise in the Constitution, constitutional history, and the structure and requisites of American federalism.

Amici take no position on the wisdom of the Patient Protection and Affordable Care Act (the "Act"), Pub. L. No. 111-148, 124 Stat. 119 (2010), a question on which their views diverge. Nonetheless, they have a strong interest in and expertise on the legal issue this Court is asked to decide-whether the Act is within Congress's powers. On that question they are of one mind: The Act is constitutional.

Brief Of Amici Curiae Jewish Alliance For Law, Social Action (Jalsa), Jewish Council On Urban Affairs (Jcua), Jewish Social Policy Action Network (Jspan), New England Jewish Labor Committee (Jlc), And Professor Abigail R. Moncrieff In Support, Abigail Moncrieff, Andrew Fischer

Faculty Scholarship

The minimum coverage provision does not require individuals to purchase any unique product or service but rather requires a standardized financial contribution to the national healthcare infrastructure from all legal residents who are able to pay – a kind of requirement that has never been found unduly or even unusually restrictive of individual liberty.

Brief Amici Curiae Of Prescription Policy Choices, Professors Of Law, And Professors Of Health Policy In Support Of Petitioners On The Minimum Coverage Provision In Department Of Health & Human Services V. State Of Florida, Abigail Moncrieff, Kevin Outterson, Kyle Thomson, David Arnold, Julia Grace Mirabella, Wang Hao

Faculty Scholarship

One purpose of the individual mandate is to eliminate the market for self-insured healthcare transactions. It is well-established in this Court’s precedent that the elimination of an interstate commercial market is a constitutionally legitimate end for Congress to pursue under the Commerce Clause. Under the Necessary and Proper Clause, Congress may use any reasonably adapted means to accomplish constitutionally legitimate ends. The individual mandate is not only reasonably adapted but is quite elegant as a means of eliminating the market for self-insured healthcare transactions. The provision effectively encourages individuals to shift from the inefficient market for self-insured care to its …

Amici Curiae Brief In Support Of Petitioners Urging Reversal On The Minimum Coverage Provision Issue, Department Of Health And Human Services V. State Of Florida, Wendy Parmet, Lorianne Sainsbury-Wong

Faculty Scholarship

This amicus brief was filed before the Supreme Court in the Affordable Care Act (ACA) litigation on behalf of Health Care for All and other Massachusetts organizations that have been involved in the implementation of Massachusetts’ health 2006 health reform legislation. The brief argues that Massachusetts’ health reform law, upon which the ACA is modeled, has been very effective in expanding insurance coverage within the State, but it required substantial federal support, through a Medicaid waiver, to achieve its success. In addition the Commonwealth’s experience illustrates that the health insurance and health care markets are inherently interstate commerce and that …

Renewing Healthy Competition: Compulsory Licenses And Why Abuses Of The Trips Article 31 Standards Are Most Damaging To The United States Healthcare Industry, Jon Matthews

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

There Is No Perfect Solution To Health Care In America, Caroline Sommers

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Brief For Private Petitioners On Severability, National Federation Of Independent Business, Et Al., V. Kathleen Sebelius, Et Al., State Of Florida, Et Al., V. Department Of Health And Human Services, Et Al., Nos. 11-393, 11-400 (U.S. Jan. 6, 2012), Randy E. Barnett

U.S. Supreme Court Briefs

No abstract provided.

Taking Healthcare's Pulse: Legal Issues Involved In Healthcare Business Transactions, Renee A. Pistone

The Journal of Business, Entrepreneurship & the Law

There are many federal regulations to consider when a healthcare lawyer creates and evaluates a particular healthcare business transaction. The healthcare market is highly competitive with the formation of healthcare business transactions on the rise. Hospitals and physicians seek dynamic and cost effective ways to deliver healthcare and partnerships are being formed between physicians and hospitals. These partnerships add to the marked increase in healthcare business transactions along with the progressed development of the physician hospital organization (“PHO”). Attorneys who execute healthcare business transactions on behalf of clients have to follow the federal laws. Part I sets forth potential ethics …

Physicians And Safe Harbor Legal Immunity, Thaddeus Mason Pope

Annals of Health Law and Life Sciences

No abstract provided.

Kickbacks, Honest Services, And Health Care Fraud After Skilling, Joan H. Krause

Annals of Health Law and Life Sciences

No abstract provided.

It’S My Body: The Biomedical Ethics Of Cell And Organ Harvest, Christina Perri

Common Reading Essay Contest Winners

First Place

Incentivizing The Utilization Of Pharmacogenomics In Drug Development, Valerie Gutmann Koch

All Faculty Scholarship

Pharmacogenomics, the study and development of compounds according to how an individual’s genes affects the body’s response to drugs, holds enormous promise for increasing the safety and efficiency of drug development while decreasing adverse reactions and the trial-and-error nature of drug prescription. However, pharmacogenomics may not be the panacea for all development and prescription problems. This article explores some of the obstacles to pharmacogenomic advancement including industry reluctance to pursue research because of potentially prohibitive costs associated with developing products and legal liability concerns. The implications pharmacogenomics has for drug research and development as well as various areas of law …

Pgtandme: Social Networking-Based Genetic Testing And The Evolving Research Model, Valerie Gutmann Koch

All Faculty Scholarship

The opportunity to use extensive genetic data, personal information, and family medical history for research purposes may be naturally appealing to the personal genetic testing (PGT) industry, which is already coupling its direct-to-consumer (DTC) products with social networking technologies, as well as to potential industry or institutional partners. This article evaluates the transformation in research that the hybrid of PGT and social networking will bring about, and – highlighting the challenges associated with a new paradigm of “patient-driven” genomic research – focuses on the consequences of shifting the structure, locus, timing, and scope of research through genetic crowd-sourcing. This article …

The Inevitability Of Health Reform, Everette James, Arthur S. Levine

Duquesne Law Review

No abstract provided.

Can Congress Make You Buy Health Insurance - The Affordable Care Act, National Health Care Reform, And The Constitutionality Of The Individual Mandate, Arthur Nussbaum

Duquesne Law Review

No abstract provided.

Commerce Games And The Individual Mandate, Leslie Meltzer Henry, Maxwell L. Stearns

Faculty Scholarship

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come.

Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, …

Teaching Law Students To Be Policymakers: The Health And Science Policy Workshop On Genomic Research, Benjamin E. Berkman, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.