HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Saturday, October 8, 2005

Clutter And Evolution

Is your house a mess?  Do you keep old notes, letters, newspaper clippings and more?  Well, according to a recent study in the Royal Economic Society's Economic Journal, there is a good reason - you cannot help it - it's hardwired!  The Times (UK) Online reports,

If your home is cluttered because you cannot bring yourself to throw anything away, do not worry. This attachment to the things we own is fundamental to our survival, according to a team of economists.

The observation that the things we own are more valuable to us than to other people simply because they are ours is widely acknowledged by economists, who call it the “endowment effect”. This holds that people demand more money to give up an object than they are willing to spend to acquire it, and explains why most of us would not swap our favourite sweater, for example, with something of equal value. Economists are interested in and puzzled by the endowment theory because it goes against classical economic theory of people behaving entirely rationally where money is concerned.

Now, three economics professors think that they have found a Darwinian explanation for why it exists. According to Steffen Huck, of University College London, Georg Kirchsteiger, of the University Libre de Bruxelles, and Jorg Oechssler, of the University of Heidelberg, our emotional attachment to our possessions is “hard-wired” into our brains to help us to survive.

They cite an experiment in which every other student in a class was given a mug bearing their university’s logo. Students who had been given mugs could then sell them to those who had not received one. They found that sellers demanded much more for the mugs than buyers were willing to pay. In other words, owners seemed to like the mugs more than buyers who did not have one, demonstrating a near- instantaneous endowment effect.

Not sure this explanation will serve as an excuse for not cleaning up my closet, but it might be worth a try. . . .  [bm]


October 8, 2005 | Permalink | TrackBack (0)

Friday, October 7, 2005

A New Dawn for Forensic Evidence

Today's Wall Street Journal has an article, "Fingerprint Matches Come Under More Fire As Potentially Fallible," (paid subscription required) that surveys recent challenges to various types of forensic evidence: fingerprints, hair samples, residue from bullets, handwriting and voice ID, etc.  The evidence in support of such "scientific" judgments is increasingly slim.  Consider:

[W]hen scientists recently tested fingerprint IDs, they told examiners one set of prints were from Mr. Mayfield and the other set from the Madrid bombings. "We told them we were trying to understand what went wrong in that case," says Itiel Dror of Britain's University of Southampton, who did the study with student David Charlton. "Could they please look at the prints and tell us where the examiners had gone wrong."

One examiner said he couldn't tell if the pair matched. Three said the pair did not match and helpfully pointed out why. The fifth examiner insisted the prints -- notorious for not matching -- did match.

Give that one a gold star.

Unbeknown to the examiners, the prints were not from Madrid and Mr. Mayfield. They were pairs that each examiner had testified in recent criminal cases came from the same person. The three who told the scientists that their pair didn't match therefore reached a conclusion opposite to the one they had given in court; another expressed uncertainty, whereas in court he had been certain. Prof. Dror will present the study later this month at the Biometrics 2005 meeting in London.


I don't know if this is of interest to health lawyers.  Genetic testing seems to be the gold standard in forensics these days, but only a fraction of criminal cases yield genetic samples that would make genetic testing relevant.  For all you law professors who are dreaming of becoming the next John Grisham, though, I smell a best seller in this story . . . . [tm]

October 7, 2005 | Permalink | TrackBack (0)

The Supreme Court and its Influence on Medicine

Gostin2_1 Professor Larry Gostin, Professor of Law at Georgetown University Law Center; Associate Dean (Research and Academic Programs); and Director of the Center for the Law and Public's Health, has an article in this week's edition of the Journal of the American Medical Association discussing the Supreme Court's influence.  The article provides an excellent overview of the Rehnquist Court's influence on medicine and health from 1986 to 2005, focusing specifically on reproductive rights, medical privacy, discrimination, and federalism.  I found it very helpful. The article is available here

October 7, 2005 | Permalink | TrackBack (0)

War on Terror Webcast

This isn't exactly health law related (except if we think of health in extremely broad terms) but I did want to alert people to the fact that The Frederick K. Cox International Law Center at Case Western Reserve University School of Law is hosting a day-long conference titled Torture and the War on Terror today.

The conference is being webcast live:

Thanks to Joe Hodnicki, librarian extraordinaire for this website.  [bm]

October 7, 2005 | Permalink | TrackBack (0)

Disability Law Editorial

Today's New York Times has a very moving editorial by Susan M. LoTempio, a woman who uses a wheelchair for mobility.  The editorial concerns her recent experience at a concert and her inability to view the concert from her assigned seat and the rather rude treatment she received when she complained about her line of sight being blocked.  Ms. LoTempio writes,

When Sir Paul came out and launched into his first number, everyone stood up, and all I could see was a wall of gyrating backsides.

Too close to the stage to even see the huge monitors overhead, I moved into the aisle to try to get a view. The security guard told me to move back. I asked him where I could go to see around the masses of bodies, and he ordered me to stay where I was.

I tried to remain polite, but that painful sensation I get when I'm being dismissed or patronized swept through me and I yelled back, "These tickets cost $300, and I can't see anything."

"Stay there," the security guard shouted, his face just inches from mine. "If you don't like it, you can leave."

He abruptly took off, returning with the guy from the disabled services office, who looked around and said there wasn't much he could do.

It was then that I snapped. More than forty years of having to enter restaurants through kitchen doors; years and years of being carried up the steps of public schools; and countless times being hauled onto airplanes like a baby in a buggy culminated in this one degrading moment. Who gave them the right to take my money and then take away the concert? Who gave them the right to make me look as if I had done something wrong?

More work needs to be completed on making sure that all buildings comply with the ADA.  [bm]

October 7, 2005 | Permalink | TrackBack (0)

Thursday, October 6, 2005

Illinois Health Care Proposal

The Washington Post reports that Governor Rod Blagojevich has a health care proposals that will help subsidize health insurance for the uninsured children in Illinois.  It states,

Gov. Rod Blagojevich (D) will unveil a proposal Thursday to subsidize health insurance for 253,000 uninsured children in Illinois, a move that specialists describe as more far-reaching than any other program in the country.

Seventy-percent of the state's uninsured children belong to families that earn $40,000 to $80,000 a year -- too much to qualify for government programs but often too little to afford private insurance.

Under Blagojevich's All Kids proposal, endorsed by the leaders of both houses of the state legislature, a family of four earning $40,000 to $59,000 would pay $40 per month per child and $10 per doctor visit.

Seems like a good place to start!   Thanks to Ezra Klein for the heads-up on this post. [bm]

October 6, 2005 | Permalink | TrackBack (0)

Genetic Testing in the Workplace: The Case of Eddy Curry

The story so far: Eddy Curry was, until Tuesday, a basketball player for the Chicago Bulls.  Last year, he missed the last 13 games of the regular season and the playoffs because of "a benign arrhythmia" (Yahoo/AP).  Pre-season is looming this year, and the Bulls' management wants Curry checked to rule out a potentially fatal condition, hypertrophic cardiomyopathy, a condition that caused the death of at least two other high-profile basketball players (the Celtics guard Reggie Lewis and Marymount's Hank Gathers).  Curry submitted to exams by at least two cardiologists, who cleared him to play, but Barry Maron, described in the AP article as "a world-renowned specialist in hypertrophic cardiomyopathy," suggested to the Bulls that a genetic test for the condition might be useful.  The Bulls told Curry to get tested, Curry refused on privacy grounds, and on Tuesday, Curry was traded to the NY Knicks.

Newsday (and many others) is reporting today that the Knicks are putting Curry through a battery of tests to determine his fitness to start as their center, but not the genetic test recommended by Dr. Maron.  So far the NBA has been silent.  It will be interesting to see whether the leagure requires the Knicks to require the genetic test when David Stern returns to the country from a trip.  (See today's column by William C. Rhoden in the New York Times [requires paid subscription to view].)

As Jason Bobe observes, over at The Personal Genome, "[t]he main issues here are: (1) Should an employer be able to demand that an employee take a genetic test (and share the results)? (2) Should employers be able to make employment decisions based on genetic information?  (Editor: Answers aren't necessarily straightforward by the way, demonstrated by the sheer variety of reactions to the Eddy Curry case.  This is an excellent opportunity to work through the issues.)"  Jason has assembled a good selection of articles to start your research.  [tm]

October 6, 2005 | Permalink | TrackBack (0)

Bird Flu in 1918

The New York Times reports on the big breakthrough by scientists studying the flu epidemic from 1918 - it was a strain of bird flu as well.  The story states,

The 1918 influenza virus, the cause of one of history's most deadly epidemics, has been reconstructed and found to be a bird flu that jumped directly to humans, two teams of federal and university scientists announced yesterday.

It was the culmination of work that began a decade ago and involved fishing tiny fragments of the 1918 virus from snippets of lung tissue from two soldiers and an Alaskan woman who died in the 1918 pandemic. The soldiers' tissue had been saved in an Army pathology warehouse, and the woman had been buried in permanently frozen ground.

This is huge, huge, huge," said John Oxford, a professor of virology at St. Bartholomew's and the Royal London Hospital who was not part of the research team. "It's a huge breakthrough to be able to put a searchlight on a virus that killed 50 million people. I can't think of anything bigger that's happened in virology for many years."

The scientists painstakingly traced the genetic sequence, synthesized the virus using tools of molecular biology, and infected mice and human lung cells with it in a secure laboratory at the Centers for Disease Control and Prevention in Atlanta. The research is being published in the journals Nature and Science.

The findings, the scientists say, reveal a small number of genetic changes that may explain why this virus was so lethal. It is significantly different from flu viruses that caused the more recent pandemics of 1957 and 1968. Those viruses were not bird flu viruses but instead were human flu viruses that picked up a few genetic elements of bird flu.

The research also confirms the legitimacy of worries about the bird flu viruses, called H5N1, that are emerging in Asia. Since 1997, bird flocks in 11 countries have been decimated by flu outbreaks. So far nearly all the people infected - more than 100, including more than 60 who died - contracted the sickness directly from birds. However, there has been little transmission between people.


October 6, 2005 | Permalink | TrackBack (0)

Wednesday, October 5, 2005

Death With Dignity

Today the Supreme Court heard arguments in the Oregon Death with Dignity case, Gonzales v. Oregon.   According to the Times

. . . .  lawyers for the federal government and for Oregon, the only state to have authorized physician-assisted suicide, argued over a single question: whether John Ashcroft acted within his authority as attorney general when he decided in 2001 that doctors would lose their federal prescription privileges if they followed the Oregon law's procedures and prescribed lethal doses of lawful medications for their terminally ill patients who wanted to end their own lives.

This is a straightforward question of federal administrative law, the bread and butter of the Supreme Court's docket. A federal appeals court ruled last year that in enacting the Controlled Substances Act in 1970, Congress did not give the attorney general the unilateral authority to sanction doctors who follow state law in prescribing federally regulated medications. The case, now known as Gonzales v. Oregon, No. 04-623, is the Bush administration's appeal.

Chief Justice John G. Roberts Jr. was an active participant in the questioning. He asked Solicitor General Paul D. Clement, who was defending the Ashcroft action, for "the closest analogy you have, other than this case," in which the attorney general had "impinged on" a state regulation of medical practice.

When Mr. Clement began to describe the Food and Drug Administration's effort some years ago to stop the use of laetrile, a purported anticancer drug that was permitted in 17 states, Chief Justice Roberts cut him off. "That's the F.D.A.," he said. "I'm talking about the attorney general under this statute."

Mr. Clement, an admired Supreme Court advocate who speaks without notes, at first said he could not think of an example. Then he offered the government's prohibition against using marijuana for medical purposes, which the Supreme Court upheld in June.

This drew an objection from Justice David H. Souter, who said Congress's desire to stop "drug pushing and drug abuse in the conventional sense" did not support the government's position on assisted suicide.

SCOTUSBlog has further updates on the divisions within the Court on this issue.  [bm]

October 5, 2005 | Permalink | TrackBack (0)

Public Service at Law Schools

There now exists a website that lists the public service projects that are available at law schools in the United States.  Take a look here.  The website is entitled: Equal Justice Works:  The E-Guide to Public Service at America's Law Schools. 

Thanks to Professor Paul Caron for this site.[bm]

October 5, 2005 | Permalink | TrackBack (0)

Tuesday, October 4, 2005

Germ Killing Tissues

The Sun Online (UK) reports on a new tissue that kilss 99.9% of cold and flu viruses by Kleenex.  According to the Sun Online, 

Makers Kleenex say that within 15 minutes of a sneeze it zaps nearly all the 15,000 germs held in a hanky — and so stops them spreading.

The three-ply tissue is impregnated with citric acid and the common chemical sodium lauryl sulphate.

These work together to destroy the “overcoat” of a virus which allows it to exist outside the body for 24 hours.

Thanks to the Huffington Post for this cite. [bm]

October 4, 2005 | Permalink | TrackBack (0)

Bird Flu and the Administration

This morning President Bush gave a brief news conference discussing mainly his selection of Ms. Miers for the Supreme Court.  He did, however, mention the Bird Flu (in response to a reporter's question) and how the United States might respond to an outbreak.  He seems to think a "military quarantine" is a possibility. Here is the Effect Measure take on his response:

Specifically, Bush was asked if he saw a larger role for the military in the event of a pandemic and he essentially responded, "Yes," saying that if avian influenza were to break out in a portion of the country, one option might be to "quarantine" that area and use the military to enforce it.

Outside of the fact this kind of thinking is pretty scary stuff, most public health experts know it won't work. Movement is too free and easily accomplished and the American people cannot be forced to do something they think will hurt them or their families. They'll find a way around it with ease. Remember that a quarantine would have to be essentially complete and airtight, because this is a self-reproducing organism. Only one or a few people getting through or for that matter entering the US from elsewhere where the disease is active would negate such a Draconian measure. Bush's public health experts certainly have told him this, so one can assume its object is not to stop disease spread but to control the population.

Here is more from MSNBC on President Bush's remarks. [bm]

October 4, 2005 | Permalink | TrackBack (0)

Monday, October 3, 2005

New Article by Professor Abbott


"The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health"

American Journal of International Law, Vol. 99, pp. 317-58,



Florida State University College of Law


On August 30, 2003, the member countries of the WTO adopted the Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. This Decision provides flexibility for the export of pharmaceutical products under compulsory license (which flexibility might otherwise have been limited by the terms of the TRIPS Agreement). This article analyzes negotiating strategies used by developing countries to achieve their objectives regarding the Decision at the WTO. The United States is pursuing the negotiation of bilateral and regional trade agreements that restrict the regulatory flexibility of developing (and developed) countries under the WTO TRIPS Agreement, Doha Declaration and Decision. This article considers whether developing countries might adapt strategies used effectively at the WTO to prevent further loss of regulatory flexibility in alternative negotiating fora. The final version of this article was published in the American Journal of International Law.

Document: Available from the SSRN Electronic Paper Collection:

October 3, 2005 | Permalink | TrackBack (0)

Harriet Miers: New Supreme Court Nominee

President Bush announced Harriet Miers as his appointment to fill Justice O'Connor's vacant seat on the Supreme Court. Here is the information that came across this morning from Reuters:

Miers, a longtime ally of Bush's going back to his days as Texas governor, would replace Justice Sandra Day O'Connor on the high court. . . .  .

A senior administration official said the name of Miers, 60, came up in consultations with both Republican and Democratic senators as someone who could win bipartisan support.

The official also said some senators from both parties thought it was important for Bush to pick someone who was not a judge and could offer a different perspective on the job.

I will link to more information as it becomes available.  [bm]

update:  Here is the Washington Post take on Miers, as well as the New York Times and SCOTUSBlog.

October 3, 2005 | Permalink | TrackBack (0)

Sunday, October 2, 2005

Job Opportunity

Two Health Law Faculty Positions





of Law invites applications and nominations for two lateral or senior level Health Law faculty appointments. The law school seeks to fill these positions over the next two years. Candidates should have a record of outstanding scholarship and teaching, including a full-time faculty appointment at a distinguished law school, and an interest in building a health law specialty of national prominence at the




of Law. 
Salary, benefits, support for research and other special needs are negotiable and highly competitive.





of Law has an extensive and growing health law program. For six years we have offered a health law certificate to our J.D. students who devote 15 credit-hours to health law specialty courses, written work and clinical work; in recent years, nearly 10% of our students have earned that certificate. Next fall we will supplement that J.D. program with an LL.M in health law, and we are expanding our already-impressive cadre of full-time and adjunct health law faculty members. The law school houses a health law journal and a health law clinic, and offers students numerous health-related externships with area providers, insurance companies, and pharmaceutical firms. The law school’s Center for Health Law & Policy sponsors health-related educational efforts and symposia. We also have an active student law-and-medicine society, and send a team to the annual health law moot court competition each year.  In conjunction with Quinnipiac’s




, we offer a joint four-year JD/MBA degree in health law and management. Recently, a joint health-care compliance training program put together by our law and business schools became the first university-based educational program to receive accreditation from the Health Care Compliance Association.


Quinnipiac University has highly respected undergraduate and graduate programs in nursing, physician assistance, physical therapy, pathology, occupational therapy, medical laboratory sciences and health management. Our university library has an excellent collection of health-science and health-management materials.


Please direct inquiries and applications to the Office of the Dean, LW-DEN,








Hamden CT


October 2, 2005 | Permalink | TrackBack (0)

Supreme Court's Health Law Docket, 2005 Term

Here's the lineup as of Monday morning, the beginning of the Court's new Term.  Links to primary materials are courtesy of the outstanding web site maintained by the Medill School of Journalism at Northwestern University.

  • 04-0623, Gonzales, Alberto, Atty. Gen., et al. v. Oregon, et al.
    Oral argument: 10-05-05 
    Court below: 9th Cir., May 26, 2004
    Question presented: Whether the Attorney General has permissibly construed the Controlled Substances Act, 21 U.S.C. 801 et seq., and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual's suicide, regardless of a state law purporting to authorize such distribution?
    9th Circuit opinion (May 26, 2004)[pdf file]
    Petition for certiorari - U.S.
    Appendix to petition for certiorari - U.S.
    Reply brief - U.S.
    AP coverage of the case coverage of the case
  • 04-1144, Ayotte, Kelly (New Hampshire Atty. Gen.) v. Planned Parenthood of Northern New England, et al.
    Oral argument: 11-30-05 
    Court below: 1st Cir., Nov. 24, 2004
    Issues: Abortion, parental notification, minors, judicial bypass
    Questions presented: (1) Did the 1st Circuit Court of Appeals apply the correct standard in a facial challenge to a statute regulating abortion when it ruled that the undue burden standard cited in Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 876-77 (1992) and Stenburg v. Carhart, 530 U.S. 914, 921 (2000) applied rather than the “no set of circumstances” standard set forth in U.S. v. Salerno, 481 U.S. 739 (1987)? (2) Whether the New Hampshire Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann 132:24-28 (2003) preserves the health and life of the minor through the Act’s judicial bypass mechanism and/or other state statutes?
    1st Circuit opinion (Nov. 24, 2004)
    1992 Supreme Court opinion in Planned Parenthood of S.E. Pa. v. Casey
    2000 Supreme Court opinion in Stenburg v. Carhart
    1987 Supreme Court opinion in U.S. v. Salerno
  • 04-1203, U.S. v. Georgia, et al. & 04-1236, Goodman, Tony v. Georgia, et al.
    Oral argument: 11-09-05 
    Court below: 11th Cir., Sept. 16, 2004
    Questions presented: (1) Whether, and to what extent, Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 et seq., validly abrogates state sovereign immunity for suits by prisoners with disabilities challenging discrimination by state-operated prisons? (2) Whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 to 12165, is a proper exercise of Congress's power under Section 5 of the 14th Amendment, as applied to the administration of prison systems?
    Petition for certiorari - U.S.
    11th Circuit opinion (Sept. 16, 2004)[unpublished]
  • 04-1244, Scheidler, Joseph, et al. v. National Organization for Women, Inc., et al. & 04-1352, Operation Rescue v. NOW
    Oral argument: 11-30-05 
    Court below: 7th Cir., Jan. 28, 2005
    Questions presented: (1) Whether the 7th Circuit Court of Appeals, on remand, disregarded the Supreme Court's mandate by holding that "all" of the predicate acts supporting the jury's finding of a RICO violation were not reversed, that the "judgment that petitioners violated RICO" was not necessarily reversed, and that the "injunction issued by the District Court" might not need to be vacated? (2) Whether the 7th Circuit correctly held, in conflict with decision of the 6th and 9th Circuits, that the Hobbs Act, 18 U.S.C. sec. 1951(a), can be read to punish acts or threats of physical violence against "any person or property" in a manner that "in any way or degree***affects commerce," even if such acts or threats of violence are wholly unconnected to either extortion or robbery? (3) Whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. sec. 1964(c)?
    7th Circuit opinion (Jan. 28, 2005)
    Earlier 2003 Supreme Court case
  • 04-1506, Arkansas Dept. of Human Services, et al. v. Ahlborn, Heidi
    Oral argument: unscheduled (cert. granted, Sept. 27, 2005)
    Court below: 8th Cir.,Feb. 9, 2005
    Issues: Settlement, Medicaid, reimbursements (I'm still trying to track down the cert. petition)
    8th Circuit opinion (Feb. 9, 2005)


October 2, 2005 | Permalink | TrackBack (0)