Health Law and Policy Commons^™

Weight Discrimination: Disability Litigation And Public Policy, Tessa Jania

Public Interest Law Reporter

No abstract provided.

Screen, Stabilize, And Ship: Emtala, U.S. Hospitals, And Undocumented Immigrants (International Patient Dumping), Jennifer M. Smith

Journal Publications

Pursuant to the Emergency Medical Treatment and Active Labor Act (EMTALA), patient dumping is illegal in the United States. American hospitals cannot inappropriately discharge or transfer unstable patients to other medical facilities in the United States without violating EMTALA. Yet, American hospitals are doing this very thing- international patient dumping, by inappropriately transferring or discharging (i.e. shipping) indigent undocumented immigrants in arguably unstable conditions to Third World medical facilities in the home country of the immigrant absent federal government oversight or compliance with EMTALA.

The Legal Ecology Of Resistance: The Role Of Antibiotic Resistance In Pharmaceutical Innovation, Kevin Outterson

Faculty Scholarship

Antibiotic effectiveness is a common pool resource that can be prematurely depleted through resistance. Some experts warn that we may face a global ecological collapse in antibiotic effectiveness. Conventional wisdom argues for more intellectual property rights to speed the creation of new antibiotics. Recent theoretical literature suggests that conservation-based approaches may yield superior results. This Article describes a novel typology for organizing these emerging theories, and provides an early empirical test of these models, using proprietary data on the sales of vancomycin, an important hospital antibiotic for the last three decades.

The results challenge the assumptions in several models, and …

The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder

St. Mary's Law Journal

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …

Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole

St. Mary's Law Journal

Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …

New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley

St. Mary's Law Journal

A new law that recently took effect has changed the way non-judicial real property foreclosure sales work in Texas. The new law, known as House Bill 655 (HB 655), relates to foreclosure sales in Texas. HB 655 amends the language of Texas Property Code section 51.0075(f) dealing with when the purchase price is due at a foreclosure sale. The amendment, however, complicates foreclosure sales in Texas. The purchase price at the foreclosure sale is no longer due immediately. Instead, if a purchaser at a foreclosure sale requests additional time to deliver the purchase price, the trustee—the person conducting the foreclosure …

Unequal And Unfair: Why Texas Should Require Mandatory Sales Price Disclosure To Reconcile The Texas Property Tax Code With The Texas Constitution., Nathan Morey

St. Mary's Law Journal

Appraisal districts in Texas are implementing a system of taxation that is unequal and unfair. Texas counties, cities, and school districts depend on local ad valorem property taxes for revenue. Under the Texas Property Tax Code, the Code establishes appraisal districts to determine the value of taxable property. There is, however, a discrepancy between the cash value of the land and its appraisal value, especially when compared to commercial property and residential property. Commercial property and high-end residential real estate are often undervalued by appraisal districts throughout the state. Because commercial properties are under-appraised, the tax burden is being unequally …

Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez

St. Mary's Law Journal

In Caperton v. A.T. Massey Coal Co., the United States Supreme Court addressed whether the Due Process Clause of the United States Constitution was violated by the denial of a motion to recuse. The motion sought to recuse a Supreme Court of Appeals Justice from West Virginia. The justice received an extraordinary campaign contribution from the chief officer of a corporate party to a case pending before the court. Several Texas courts addressed whether recusal was necessary based on campaign contributions prior to the decision in Caperton. Texas courts have universally held that recusal was not required. The United States …

If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson

St. Mary's Law Journal

The Supreme Court of Texas and the Texas Court of Criminal Appeals adopted the Standards for Appellate Conduct (Standards) on February 1, 1999. The Standards are intended to “give practitioners a valuable tool to use with clients who demand unprofessional conduct” by imposing “an affirmative duty to educate the client about the Standards of Appellate Conduct.” The Standards further state they do not “alter existing standards of conduct under the Texas Rules of Disciplinary Procedure, or the Code of Judicial Conduct.” Under the Rules of Disciplinary Procedure, sanctionable conduct includes “acts or omissions…which violate one or more of the Texas …

Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts., Nancy B. Rapoport

St. Mary's Law Journal

Bankruptcy courts see too many incompetent bankruptcy lawyers, and the courts have few options for dealing with them. A court can rule against the lawyer, but this strategy punishes the lawyer’s client, who may be an innocent bystander. Alternatively, nothing prohibits a judge from deciding to hand down a sanctions opinion. Sanctions opinions arise when one party makes a request, or the court believes a lawyer’s behavior is serious enough to merit a written order. These instances include flouting the law—either bankruptcy law or the ethical rules—or being unaware of the fundamentals of bankruptcy practice and policy. In the instance …

Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly

St. Mary's Law Journal

In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …

Hall's Standards Of Review In Texas Foreword., Wallace B. Jefferson

St. Mary's Law Journal

Abstract Forthcoming.

Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery

St. Mary's Law Journal

Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Standards of review are the cornerstones of appeals. These standards must be woven into the discussion of the facts and substantive law in a manner which persuades the appellate court that the trial court erred. Litigants must measure their factual and legal arguments against the appropriate rubric to write an effective and persuasive brief. Appellate judges agree that mechanical recitation …

Hukum-Hukum Berkaitan Pesakit Aids Dalam Urusan Ibadat Dan Kekeluargaan., Noor Hamiza Mustapa

Student Works (2010-2019)

This dissertation discusses legal rules pertaining to AIDS patients in ‘ibadat and family matters. ‘Ibadat covers prayers, fasting and hajj. Family matters deal with marriage, fasakh (annulment of marriage), sexual intercourse, pregnancy, abortion, fosterage and hadanah (custody of children). The research based on primary and secondary sources, for instances, al-Quran, al-Sunnah, classical fiqh books, related acts and enactments, dissertations, theses, journals, seminar paperworks, magazines and newspapers. Moreover, in order to acquire primary sources which are current and latest, the author make an effort to interview specialists such as medical experts and contemporary Islamic scholars. The author utilizes various methods which …

Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan

Publications

No abstract provided.

Parents Super-Sizing Their Children: Criminalizing And Prosecuting The Rising Incidence Of Childhood Obesity As Child Abuse, Cheryl Page

Journal Publications

With all of the mudslinging that is taking place in the current healthcare debate, very few proponents and opponents seem to be addressing the elephant in the room-obesity. Childhood obesity, specifically, is rising at an alarming rate. "The prevalence of obesity (BMI 30) continues to be a health concern for adults, children and adolescents in the United States." Sadly, the rate of adult obesity is increasing almost as dramatically as that of childhood obesity. Based on the National Health and Nutrition Examination Survey (NHANES) study, in the combined years of 2003-2006, of children between the ages of two and nineteen, …

Penetrating The Silence In Sierra Leone: A Blueprint For The Eradication Of Female Genital Mutilation, Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad, Helen Shin

Faculty Scholarship

The African grassroots movement to eradicate female genital mutilation (also known as “female genital cutting” and “female circumcision,” hereinafter “FGM”) is widespread. While many African countries and grassroots organizations have made great strides in their efforts to eliminate FGM, Sierra Leone lags behind. In Sierra Leone, FGM is practiced within the bondo secret society, an ancient, all-female commune located in West Africa and also known as the sande. The bondo society’s traditional role was to direct girls’ rites of passage into adulthood. In order to become a member of the bondo, a girl or woman must undergo various rituals, the …

Race And Healthcare In America: Foreword, Barbara A. Noah

Faculty Scholarship

In all four of the articles that form this Symposium, the authors identify troubling disparities and injustices in our healthcare system and suggest strategies to ameliorate these problems. Sadly, the reforms of the Obama administration will probably do little to address these issues directly. The mandated insurance coverage requirement, for example, applies to U.S. citizens and legal residents, but not, unsurprisingly, to undocumented immigrants? Similarly, the legislation expands public programs but does nothing directly to support the burden of EMT ALA's unfunded mandate on hospitals. And, as the evidence has long demonstrated, insurance coverage alone fails to guarantee equal medical …

Not So Hip - The Expanded Burdens On And Consequences To Law Firms As Business Associates Under Hitech Modifications To Hipaa, Megan Bradshaw, Benjamin K. Hoover

Richmond Journal of Law and the Public Interest

The Health Insurance Portability and Accountability Act of 1996 ("HIPAA ") governs the management of protected health information by covered entities (e.g., health care providers) and their business associates. However, the Health Information Technology for Economic and Clinical Health Act ("HITECH"), contained within the American Recovery and Reinvestment Act of 2009 ("ARRA"), drastically alters the scope of HIPAA regulations with regard to business associates, including law firms that routinely handle the protected health information ("PHI") governed by HIPAA. Under the HITECH Act, the definition of "business associate" is expanded, and these entities are treated as "covered" for purposes of the …

What Scribner Wrought: How The Invention Of Modern Dialysis Shaped Health Law And Policy, Sallie Thieme Sanford

Richmond Journal of Law and the Public Interest

In March 1960, Clyde Shields, a machinist dying from incurable kidney disease, was connected to an "artificial kidney" by means of a Ushaped Teflon tube that came to be known as the Scribner shunt. By facilitating long-term dialysis, Dr. Belding Scriber's invention changed chronic kidney failure from a fatal illness to a treatable condition. A half-century after this milestone, there are now more than 1.6 million people throughout the world on maintenance dialysis. This medical advancement has, in turn, had a profound impact on key areas of health law and policy. This paper focuses on the historical roots and current …