Health Law and Policy Commons^™

Governance And Biosecurity: Strengthening Security And Oversight Of The Nation's Biological Agent Laboratories, Michael Greenberger, Talley Kovacs, Marita Mike

Faculty Scholarship

Since the advent of the Anthrax attacks in the fall of 2001, the United States has been confronted with a serious policy conundrum. On the one hand, we have strengthened programs that encourage the use of our best scientific resources to develop countermeasures to the weaponization of highly dangerous biopathogens. On the other hand, research on those countermeasures requires the use of the very biopathogens we seek to defeat. There have been many mishaps in the handling of those pathogens, which raises the frightening prospect that the research may be as (or more) dangerous than bioterrorist acts themselves. Indeed, the …

Legal Impediments To The Diffusion Of Telemedicine, Diane E. Hoffmann, Virginia Rowthorn

Faculty Scholarship

No abstract provided.

Restoring Transparency To Automated Authority, Frank Pasquale

Faculty Scholarship

Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity grows important enough, it should be subject to transparency requirements that reflect its centrality. The increasing intertwining of governmental, business, and academic entities should provide some leverage for public-spirited appropriators and policymakers to insist on more general openness.

However well an "invisible hand" coordinates economic activity generally, markets depend on reliable information about the practices of core firms that finance, rank, and rate entities in the rest of …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher T. Robertson, Frank A. Pasquale

Faculty Scholarship

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe.

The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

Law & Health Care Newsletter, V. 18, No. 2, Spring 2011

Law & Health Care Newsletter

No abstract provided.

Law & Health Care Newsletter, V. 19, No. 1, Fall 2011

Law & Health Care Newsletter

No abstract provided.

Using Law To Fight A Silent Epidemic: The Role Of Healthy Literacy In Health Care Access, Quality & Cost, Brietta Clark

Annals of Health Law and Life Sciences

The dominant rhetoric in the health care policy debate about cost has assumed an inherent tension between access and quality on the one hand, and cost effectiveness on the other; but an emerging discourse has challenged this narrative by presenting a more nuanced relationship between access, quality, and cost. This is reflected in the discourse surrounding health literacy, which is viewed as an important tool for achieving all three goals. Health literacy refers to one's ability to obtain, understand and use health information to make appropriate health decisions. Research shows that improving patients' health literacy can help overcome access barriers …

The Real Constitutional Problem With The Affordable Care Act, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Loopholes In The Affordable Care Act: Regulatory Gaps And Border Crossing Techniques And How To Address Them, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Lebron V. Gottlieb Memorial Hospital: Capping Medical Practice Reform In Illinois, Leonard Nelson, Amanda Swanson, Marianne Buckley

Annals of Health Law and Life Sciences

On February 4, 2010 the Illinois Supreme Court struck down Illinois' medical practice reform bill, P.A. 94-677, when it decided Lebron v. Gottlieb Memorial Hospital. Although the court only considered the unconstitutionality of the cap on non-economic damages contained in that bill, an inseverability provision resulted in the invalidation of all of its provisions. The end result of the Lebron decision extends much further than the striking of the cap on non-economic damages. It affects such areas as medical liability insurance law, physician discipline, public disclosure of information, the admissibility of physician statements into evidence, and expert witness standards. …

It’S An Art Not A Science: State-Mandated Insurance Coverage Of Assisted Reproductive Technologies And Legal Implications For Gay And Unmarried Persons, Valarie K. Blake

Scholarly Works

Assisted reproductive technology (ART) has made it possible for a wealth of individuals, who would otherwise be unable, to create families and become parents. Traditionally, most people think of infertile couples as the beneficiaries of such technology, but ART has special and important implications for gay and/or unmarried persons as well. Dubbed the “structurally infertile,” this latter group is highly dependent on ART for their family planning needs. Despite the growth in popularity of ART for both the medically and structurally infertile, ART continues to be a mainly private-payer enterprise, reserved for those individuals who have the expendable income to …

Bad News For Mail Robbers: The Obvious Constitutionality Of Health Care Reform, Andrew Koppelman

Faculty Working Papers

Two federal district judges have invalidated the so-called "individual mandate" in the Patient Protection and Affordable Care Act of 2010. Their reasoning is bizarre and mischievous. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the framers, and cripple the nation's ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

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

Faculty Working Papers

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 tradtional 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 …

Legally Ill: Is The Federal Health Insurance Mandate Constitutional?, Josh Bolus

Barry Law Review

This article explores the constitutionality of the individual mandate of the health care reform bill known as the Patient Protection and Affordable Care Act, as well as the economic penalty that is assessed to those who do not meet the mandate. A brief history of prior health reform initiatives in the United States will be examined to provide a historical context for the current political debate regarding the currently instituted reforms. The legal justifications of the proponents for the mandate will be analyzed regarding their constitutionality, and the legal fate of the mandate will be examined. Lastly, this article will …

Whose Body? Whose Soul? Medical Decision-Making On Behalf Of Children And The Free Exercise Clause Before And After Employment Division V. Smith, B. Jessie Hill

Faculty Publications

Within constitutional law, children’s rights have suffered from severe neglect. The issue of parents’ constitutional rights to deny children medical treatment based on religious belief is one area in desperate need of attention. Although the Supreme Court’s 199 decision in Employment Division v. Smith seemingly set forth a relatively clear rule regarding the availability of exemptions from generally applicable laws - such as those requiring parents to ensure that their children receive appropriate medical care - Smith has changed little in this realm, and if anything, it has only confused matters, highlighting the intractable nature of the issue. While Smith …

Political Factors And Enforcement Of The Nursing Home Regulatory Regime, Philip C. Aka, Lucinda M. Deason, Augustine Hammond

Journal of Law and Health

This study analyzes the influence of political factors, oversight, and nursing home affiliation or ownership status on the enforcement of the nursing home regulatory regime, signified by the Nursing Home Reform Act ("NHRA") and its progeny. Specifically speaking, it measures, using the statistical technique of regression analysis, factors that account for variations across states in the number of deficiencies (or violations of quality standards) cited by nursing home inspectors across the states. This work is a first of its kind, an analysis not government-related, by a set of public administration scholars that systematically studies the influence of political forces on …

Follow The Leader?: Maryland's Response To The New Federal Stem Cell Guidelines, Michael Ulrich

The Appendix, Journal of Health Care Law & Policy

No abstract provided.

The Federalism Of Climex Lectularius: What Bed-Bugs Tell Us About Fifra Preemption In Pesticide Applicator Cases, David Beugelmans

The Appendix, Journal of Health Care Law & Policy

No abstract provided.

Buyer Beware: An Exploration Of Health Risks And Legal Policies In Favor Of A Labeling Requirement For Genetically Modified Organisms, Rebecca Jesada

The Appendix, Journal of Health Care Law & Policy

No abstract provided.

Improving Health Care Outcomes Through Personalized Comparisons Of Treatment Effectiveness Based On Electronic Health Records, Sharona Hoffman, Andy Podgurski

Faculty Publications

Comparative effectiveness research (CER) is one of the Patient Protection and Affordable Care Act’s significant initiatives that aims to improve treatment outcomes and lower health care costs. This Article takes CER a step further and suggests a novel clinical application for it. The Article proposes the development of a national framework to enable physicians to rapidly perform, through a computerized service, medically sound personalized comparisons of the effectiveness of possible treatments for patients’ conditions. A treatment comparison for a given patient would be based on data from electronic health records of a cohort of clinically similar patients who received the …