Health Law and Policy Commons^™

Dynamics Of Healthcare Reform: Bitter Pills Old And New, Christopher N.J. Roberts

Vanderbilt Journal of Transnational Law

The United States is at a crossroads--albeit one it has visited several times before. Although the Supreme Court has ruled upon the constitutionality of the Patient Protection and Affordable Care Act, the polarizing controversy surrounding national healthcare that began several generations ago is likely to continue into the foreseeable future. In this latest round of national debates, the issue of healthcare has been framed exclusively as a domestic issue. But history shows that the question of national healthcare in the United States has also been an extremely important issue for international law and international politics. To shed light on the …

"The Life Of The Flesh Is In The Blood": State Storage And Usage Of Baby's Blood Sample, Jaclyn S. D'Arminio

Cardozo Journal of Equal Rights & Social Justice

The note highlights the ethical, legal, and policy challenges surrounding Newborn Screening (NBS) programs, particularly the storage and use of newborn bloodspots. It argues that while these programs provide crucial health benefits, the lack of informed consent regarding the retention and use of bloodspots raises significant privacy concerns. The central argument is that balancing public health benefits with individual privacy rights requires robust informed consent frameworks to maintain trust and ensure scientific progress.

Litigating Federal Health Care Legislation And The Interstices Of Procedure,, Wendy Collins Perdue

Law Faculty Publications

Forward to the 2012 Allen Chair Symposium issue, focused on the litigation challenges to the Patient Protection and Affordable Care Act ("ACA").

2010-2011 Veterans Law Update, Tara L. Casey

Law Faculty Publications

2011 saw multiple changes to the laws relating to veterans, their rights and benefits, and the Department of Veterans Affairs ("VA"). This Article will cover select updates to the field of veterans law codified in the Code of Federal Regulations and the United States Code, proposed in the Federal Register, and adjudicated in the courts. Part I will cover updates related directly to veterans' benefits and rights. Part II will focus on updates to rules involving veterans' caregivers and healthcare facilities. Part III will cover proposed rules dealing with veterans' claims and insurance. Part IV will focus on rules and …

Internet Advertising After Sorrell V. Ims Health: A Discussion On Data Privacy & The First Amendment, Agatha M. Cole

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

"Sell's" Conundrums: The Right Of Incompetent Defendants To Refuse Anti-Psychotic Medication, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Supreme Court's 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial "may be rare." Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this essay explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them …

An Investigation Of The Rationality Of Consumer Valuations Of Multiple Health Risks, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

After developing a conceptual analysis of consumer valuation of multiple risks, we explore both economic and cognitive hypotheses regarding individual risk-taking. Using a sample of over 1,500 consumers, our study ascertains risk-dollar tradeoffs for the risks associated with using an insecticide and a toilet bowl cleaner. We observe the expected positive valuation of risk reductions andfind empirical supportfor a diminishing in the valuation of risk reduction as the extent of the risk reduction increases. We also find evidence of certainty premiums for the total elimination of one risk, but no strong evidence of additional certainty premiums for the elimination of …

Reining In The Rogue Squadron: Making Sense Of The "Original Source" Exception For Qui Tam Relators, Dayna Bowen Matthew

Publications

The qui tam provision of the Civil False Claims Act effectively serves to expand the government’s capacity to combat fraud, but also invites abusive prosecution against blameless public contractors. Although the public disclosure jurisdictional bar is designed to permit worthy claimants to proceed as whistle blowers while precluding parasitic opportunists from unfairly imposing litigation costs and reaping undeserved awards, the inconsistent judicial interpretation of the original source exception threatens predictable and just law enforcement. Christopher Alexion’s note categorizes the approaches courts have taken as ranging from permissive, to “middle ground” to restrictive based on the timing of the relator’s disclosure, …

Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd

Publications

Health, safety, and environmental regulation in the United States are saturated with risk thinking. It was not always so, and it may not be so in the future. But today, the formal, quantitative approach to risk provides much of the basis for regulation in these fields, a development that seems quite natural, even necessary. This particular approach, while it drew on conceptual and technical developments that had been underway for decades, achieved prominence during a relatively short timeframe; roughly, between the mid-1970s and the early 1980s--a time of hard looks and regulatory reform. Prior to this time, formal conceptions of …

Health Cover(Age)Ing, Becca Rausch

Faculty Articles

This article posits that the emerging employer-imposed health insurance fat tax regime subverts the public policy goal of achieving actual health and evidences two important systemic phenomena: first, that these fat taxes force fat people to cover their fatness, and second, that current legal structure permitting this practice ensures that society continues to cover up its anti-fat bias. American society, through the health care system and other mechanisms, has created a fat-thin dichotomy within which thin is good and fat is bad. Recently, employers began reinforcing this dichotomy by imposing on employees whose weight renders them “obese” on the Body …

Medical Marijuana: A Study Of Unintended Consequences, Gerald Caplan

McGeorge School of Law Scholarly Articles

No abstract provided.

Health Equity, Healthy People 2020, And Coercive Legal Mechanisms As Necessary For The Achievement Of Both, Emily Whelan Parento

McGeorge School of Law Scholarly Articles

Principles of health equity require that all people have equal opportunity to develop and maintain their health, yet in the face of widespread and presumptively inequitable health disparities, the law has done little. This paper argues that health equity demands the use of coercive legal mechanisms in certain circumstances given the existence of current disparities and the evidence of effectiveness of direct regulation as compared to its alternatives. Moreover, the paper argues that Healthy People 2020, which is the nation's “master blueprint for health” and explicitly seeks to achieve health equity, has not fully incorporated the principles of health equity …

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …

Teaching Health Law In Rural Ethiopia: Using A Pepfar Partnership Framework And India's Shanbaug Decision To Shape A Course, Sallie Thieme Sanford [email protected]

Articles

In April 2011, I taught a month-long intensive health law course at Haramaya University College of Law in rural eastern Ethiopia. Given the burgeoning interest in global health law, I suspect, and hope, that others are considering teaching similar courses, whether as visiting or resident faculty. This essay attempts to ease their course preparation workload. I will describe how I used two recent documents – India’s 2011 Shanbaug decision and Ethiopia’s 2010 PEPFAR Partnership Framework – to shape the course. Both of these are worth consideration for use in a variety of health law and policy courses based in low-income …

Designing Model Homes For The Changing Medical Neighborhood: A Multi-Player Pilot Offers Lessons For Aco And Pcmh Construction, Sallie Thieme Sanford [email protected]

Articles

This Article first describes the ingrained construction incentives in our current health care system and the challenges they present. The Article then turns to key innovations to address these challenges, with a particular focus on accountable care and medical homes. Next, the Article considers the early spec houses" that provide the model for the PCMHs under development throughout the country. Then, the Article focuses on the design and finance features of Washington's ongoing pilot. Finally, the Article concludes with thoughts on a series of questions raised by this pilot and others like it. Ultimately, what medical home designs are best …

Affordable Care Act Litigation: The Standing Paradox, Elizabeth Weeks Leonard

Scholarly Works

The Patient Protection and Affordable Care Act (ACA) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on allocation of power between the federal government and states. The Article proceeds by …

The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard

Scholarly Works

This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets of …

An Essay On Originalism And The 'Individual Mandate': Rounding Out The Government’S Case For Constitutionality, Dan T. Coenen

Scholarly Works

The Supreme Court now has under advisement the landmark federal health care law case. Much attention has focused on the law’s minimum coverage provision—or so-called “individual mandate” — and, in particular, its constitutionality under the Commerce Clause and the Necessary and Proper Clause. In a separate and much lengthier article, I offer two main observations about the arguments made to the Court on that issue. First, I show that the challengers of the minimum coverage provision emphasized originalist reasoning in their briefs and oral arguments, while the federal government did not. Second, I explain why — contrary to the impression …

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist’S Crystal Ball, Donald H. Stone

All Faculty Scholarship

This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention …