HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, February 9, 2023

The Right to Personality: Navigating the Brave New World of Personality-Altering Interventions

Christopher Sundby (University of Miami), The Right to Personality: Navigating the Brave New World of Personality-Altering Interventions, 55 Conn. L. Rev 2 (2023):

As neuroscience progresses, policy makers will have an increasing arsenal of behavior-modifying interventions at their disposal to deploy in the hopes of reducing recidivism and making the criminal justice system more rehabilitative. While these interventions are promising, they also can pose grave risks to individual liberty interests that are insufficiently acknowledged, much less protected, by current jurisprudence. Specifically, the current legal regimes and proposed alternatives either fail to identify the nature of the liberty at stake by overly focusing on physical side effects to the exclusion of thought- and personality-altering side effects, reject completely the potential for these interventions to improve the justice system, or inadvertently invite the medicalization of crime. This Article proposes a balancing test centered around the Fifth and Fourteenth Amendment liberty interest in “personality integrity.” This liberty interest has roots in the “intellectual prong” of the liberty interest referenced in the Supreme Court’s forced medication jurisprudence. This approach allows for the adoption of some beneficial interventions as technology progresses, avoids subjective assessments of “good” or “bad” personality traits, and properly protects against the coercive alteration of the core identity of the individual.

February 9, 2023 | Permalink | Comments (0)

Wednesday, February 8, 2023

Child Welfare Requires Adequate Remedial Services

Raymond C O'Brien (Catholic University of America), Child Welfare Requires Adequate Remedial Services, 92 Miss. C.L. Rev. at 107 (2022):

Each year an increasing number of minors are determined to be at risk of harm because of the abuse or neglect of their parents. Until recently, the vast majority of these minors were involuntarily removed from the custody of their parents and placed with relative foster care, nonrelative foster care, or group homes. Removal is always traumatic for the child and family, often augmented by unjust racial or economic stereotyping. This is especially true when removal is prompted by allegations of the suspicion of imminent abuse, anticipatory neglect, or what is most often termed predictive neglect. That is, even though there is no actual harm committed, there is a preponderance of the evidence that, based on conditions, circumstances, or associations, there is an imminent—predictive—risk of abuse or neglect of a child. Facts illustrate that a disproportionate percentage of these at-risk children identified are Native American, African American, or Hispanic and, as such, are unduly susceptible to discriminatory stereotypes associated with families of single parents, poor parents, parents adversely affected by mental illness, substance abuse, or simply erratic parenting skills. Until recently, federal financial support for state services offered to parents to correct the cause of the removal could only be obtained if the child were removed from the parents’ custody and the parents qualified for remedial services. Upon removal, the parents were offered services in accordance with a state-proposed parenting plan designed to correct actual or predictive neglect, but time limits were imposed, which heightened the anxiety caused by enforced parent- child separation, and in some cases, the looming possibility of termination of parental rights. Then, in 2018, Congress passed the Family First Prevention Services Act (“Family First”), which made federal funds available to states to pay for in-home remedial services and discouraged states from planning permanent placements with persons other than the parents of the child. Many laud the new legislation as a major innovation, but others argue it does not do enough to support prevention services, fund innovative remedial services, or support states seeking to address perennial risk factors through community involvement.

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February 8, 2023 | Permalink | Comments (0)

Tuesday, February 7, 2023

Analysis of Over 2,200 Life Science Companies Reveals a Network of Potentially Illegal Interlocked Boards

Mark A. Lemley (Stanford University), Anoop Manjunath (Stanford University), Nathan Kahrobai (Stanford University), Ishan Kumar (Stanford University), Analysis of Over 2,200 Life Science Companies Reveals a Network of Potentially Illegal Interlocked Boards, Stan. L. & Econ. Onlin Working Paper 578 (2022):

Competition between life science companies is critical to ensure innovative therapies are efficiently developed to improve human health. Anticompetitive behavior may harm scientific progress and, ultimately, patients. One well-established category of anticompetitive behavior is the “interlocking directorate.” It is illegal for companies’ directors to “interlock” by also serving on the boards of competitors. To investigate anticompetitive behavior in the life sciences, we evaluated overlaps in the board membership of 2,241 public life science companies since 2000. At any given time, 10-20% of board members are interlocked; their tenures are 50% longer than non-interlocked directors. The number of interlocks has more than doubled in the last two decades. Interlocking directorates are particularly prevalent in oncology, neurology, immunology, and respiratory disease. Over half of all companies with more than $5 million in revenue are interlocked. A significant fraction of the life sciences industry is engaged in anticompetitive—and potentially illegal—behavior.

February 7, 2023 | Permalink | Comments (0)

Monday, February 6, 2023

Confronting State Violence: Lessons from India's Farmer Protests

Smita Narula (Pace University), Confronting State Violence: Lessons from India's Farmer Protests, 54 Colum. Hum. Rts. L. Rev. 1 (2022):

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored ecological and economic violence that have relegated millions of Indian farmers to a state of precarity and desperation. I further argue that the protests hold key insights for social movements around the globe, and for the future of food in India and beyond.

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February 6, 2023 | Permalink | Comments (0)

Abortion Pills

David S. Cohen (Drexel University), Greer Donley (University of Pittsburgh), Rachel Rebouché (Temple University), Abortion Pills (2023):

Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

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February 6, 2023 | Permalink | Comments (0)

Combatting a Crisis of Global Food Protectionism Sparked by the War in Ukraine

Daniel C. K. Chow (Ohio State University), Ian Sheldon (Ohio State University), Combatting a Crisis of Global Food Protectionism Sparked by the War in Ukraine, Ohio St. Legal Stud. Res. Paper 753 (2023):

The world is currently gripped in a food crisis of historic proportions that is threatening tens of millions of people in the poorest countries of the world with famine and starvation. Sparked by the war in Ukraine, this crisis is being made worse by nations imposing export restrictions on food in a misguided attempt to curb soaring domestic food prices. Export restrictions are “beggar thy neighbor” policies that prevent increases in domestic food prices but at the expense of raising world prices, exacerbating the crisis.

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February 6, 2023 | Permalink | Comments (0)

In What Furnace Was Thy Brain? Redefining Ethics, Cognition, and Tort Duty For Medical Artificial Intelligence

Christos Strubakos (University of Detroit Mercy), In What Furnace Was Thy Brain? Redefining Ethics, Cognition, and Tort Duty For Medical Artificial Intelligence, 100 U. Detroit Mercy L. Rev. 1 (2022):

Healthcare systems will likely prefer the reliability and speed of an AI system that does not need breaks, does not suffer fatigue, and does not get sick over, human healthcare professionals. This Note explores how AI can be assigned tort liability in a healthcare setting. I argue that tort law, as it stands, is in-sufficient to assign liability when artificial intelligence is used in a med-ical setting and is relied on by a technician or mid-level provider. This piece argues that the legal system will have to redefine duty in medical AI based on an agent-relative moral framework rather than a universal ethical imperative, since a universal ethical imperative implies that the human mind has the capacity for ethical reasoning. In particular, my redefinition will focus on AI’s strengths in doing rapid, accurate data-mining and statistical analysis. Rather than focus on AI’s duty in a traditional tort sense, I argue that the algorithm should be trained to calculate the probability of its decisions resulting in liability. Thus, the AI must be held to a new duty of care in which the patient benefit of using it is weighed against the likelihood of litigation resulting from any of its decisions with that particular patient. In this way, the legal system can, for medical AI, bypass the problem raised by duty, which exists as an innate human moral capacity.

February 6, 2023 | Permalink | Comments (0)

Sunday, February 5, 2023

Role of Innovation and Technology for Providing Better Protection to Refugees

Prakash Sharma (Vivekananda Institute of Professional Studies), Role of Innovation and Technology for Providing Better Protection to Refugees (2023):

The global governance of humanitarianism has been largely State-led and State-centric. Such an approach is still continuing, thereby resulting in greater dependency on donor governments. Having said this, over the years, UNHCR is prioritizing engagement with private actors to create, and at the same time, participate in sustainable alternatives to state-led humanitarian dependency. The engagement involves multiple roles including sharing information, raising awareness, lobbying and advocating, connecting, incentivizing, etc. Because of such engagements, there are greater possibilities for refugees to have access to training, mentorship, microcredit, and better livelihoods. The paper argues that such innovative effort has the potential to empower refugees rather than treat them as burdens to the host communities. The paper concludes that the time has come wherein the States must embrace the role of private actors to fundamentally transform the existing State-led emergency response. This would require careful oversight by the office of UNHCR to ensure that no compromise is made to the core protection standards.

February 5, 2023 | Permalink | Comments (0)

Aducanumab, Accelerated Approvals & the Agency: Why the FDA Needs Structural Reform

Matthew Herder (Dalhousie University), Aducanumab, Accelerated Approvals & the Agency: Why the FDA Needs Structural Reform, J. L. Med. & Ethics (Forthcoming):

The US Food and Drug Administration’s controversial decision to grant accelerated approval to aducanumab (Aduhelm), a therapy for Alzheimer’s disease, has motivated multiple policy reforms. Drawing upon a case series of other drugs granted accelerated approval and interviews of senior FDA officials, I argue that reform should be informed but not defined by aducanumab. Rather, structural reforms are needed to reshape FDA’s core priorities and restore the regulatory system’s commitment to scientific rigor.

February 5, 2023 | Permalink | Comments (0)

Good Faith in the Time of COVID-19

Amanda Reilly (Victoria University of Wellington), Good Faith in the Time of COVID-19, 47 New Zealand J. Emp. Rel. 2 (2022):

This article discusses some key legal developments related to Covid-19 and employment law. It considers both those related to the economic impact of Covid-19 and those related to vaccination requirements. Some legal issues which arose were specific to the circumstances of the Covid19 pandemic while others raise more broadly applicable questions which are yet to be resolved. One very clear thread that emerges is that the need for employers to consult and engage with employees in good faith was not negated by the fact of a public health crisis and national state of emergency.

February 5, 2023 | Permalink | Comments (0)

Ukrainian-Slovak Relations in the Context of Ensuring Food Security

Bezpartochny (National Aerospace University), Igor Britchenko (State Higher Vocationa School), Ukrainian-Slovak Relations in the Context of Ensuring Food Security, 12 Kosice Security Revue. 2 (2022):

The article addresses the features of Ukrainian-Slovak relations in the period of the establishment of the countries’ independencies. It analyzes the exports of commodities and agricultural and food products from Ukraine to Slovakia. The dynamics of the change in the parameters of agricultural export in martial law is assessed. Slovakia’s position among the EU countries in terms of agricultural exports from Ukraine is specified. The ways to support Ukrainian agriculture for the EU countries and Slovakia in martial law and to secure the participation of Ukrainian companies in the implementation of investment projects related to the development of export logistics infrastructure are outlined. The article offers prospective directions in the development of Ukrainian-Slovak relations in terms of agricultural export logistics in conditions of the seaport blockade and cross-border cooperation in the framework of existing joint programs. Special attention is paid to the need to introduce alternative logistic routes for agricultural export from Ukraine to Slovakia using the capacities of rail, road, and river transport, multimodal and intermodal shipping, and the creation of modern logistics hubs. The opportunities to attract the EU institutional assistance through Slovakia are examined in the framework of maintaining the food security and support of Ukraine’s agriculture. The need for further development of Ukrainian-Slovak relations in terms of ensuring food security and fostering agricultural exports by inclusion of other EU countries in the logistics chain is emphasized.

February 5, 2023 | Permalink | Comments (0)

Saturday, February 4, 2023

Vaccine Passports and the Charter: Do they Actually Infringe Rights?

Colton Fehr (Thompson Rivers University), Vaccine Passports and the Charter: Do they Actually Infringe Rights?, 43 Nat’l J. Const. L. 95 (2022):

Although most Canadians consented to receiving the COVID-19 Vaccine, many others still refuse or remain hesitant despite medical consensus that the vaccine works. To encourage these people to receive the vaccine, many provincial governments have instituted a vaccine passport system. This system excludes people from attending a variety of public places considered unnecessary to meet basic needs. The people opposed to receiving the vaccine maintain that a vaccine passport system violates their constitutional rights. They are correct in a sense as this system may ‘cause’ physical harm to a narrow subset of people contrary to these laws likely objective of protecting public health. This would render the vaccine passport system overbroad. As with other recent jurisprudence, however, I contend that such breaches of the overbreadth principle are clearly justifiable under section 1 of the Charter. The fact that vaccine passports and other clearly prudent laws violate ‘fundamental justice’ requires a rethink of whether the Supreme Court’s recent reconceptualization of the overbreadth principle ought to be preserved.

February 4, 2023 | Permalink | Comments (0)

Response of the European Law Institute to the European Commission's Public Consultation on the Initiative on the Cross-Border

Christiana Fountoulakis (Independent), Gerald Mäsch (Independent), et. al., Response of the European Law Institute to the European Commission's Public Consultation on the Initiative on the Cross-Border, Eur. L. I. (2022):

The European Law Institute (ELI) is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. In this paper the ELI responds to the public consultation of the European Commission on the cross-border protection of vulnerable adults in the European Union. The law on the protection of vulnerable adults is not harmonised and varies from one EU Member State to another. The paper discusses issues of the European cooperation, competence, recognition and conflict of law rules in relation to vulnerable adults in international matters in particular in connection with the Hague Convention of 13 January 2000 on the International Protection of Adults. The ELI suggests that legislative measures taken by the EU aiming at complementing the Hague Convention should take into account the ex lege power of representation by family members as a measure of protection of the adult in personal or patrimonial matters. The paper underlines the need for an online European Certificate of Powers of Representation. It also advocates, under certain conditions, the abolition of the exequatur procedures for measures of protection requiring enforcement in another Member State.

February 4, 2023 | Permalink | Comments (0)

Race and Ethnicity in the Pandemic

Venkat Pulla (Independent), Rituparna Bhattacharyya (Independent), Rachel Lafain (University of South Australia),  Race and Ethnicity in the Pandemic, J. Space & Culture, India (2022):

This study begins with the historical understanding of race and its modern perspectives as a social construct amid social identity and critical race theories. Next, race and ethnicity are explored within the context of COVID-19, whereby those of non-white backgrounds are seeing different disastrous health outcomes and experiencing heightened levels of racism in the pandemic. Examples and analyses from around the world are then provided, which have resulted in health disparities and increased racism against non-white people, such as the high-rise apartment building disasters, rural Indigenous communities, and the Black Lives Matter movement. Adding fuel to the fire, there have been rumours internationally of certain ethnic groups carrying and spreading COVID-19.

February 4, 2023 | Permalink | Comments (0)

Wine Geographical Indications and Product Specifications; A Case of Prosecco Quality and Characteristics?

Lisa Spagnolo (Macquarie University), Mark Davison (Monash University), Wine Geographical Indications and Product Specifications; A Case of Prosecco Quality and Characteristics?, 23 J. World Inv. & Trade 2 (2022):

TRIPS Art. 22 defines Geographical Indications (GI). However, GI claims are increasingly contentious. Given the significance of trade barriers which can arise from unjustified GI claims, the article argues that legitimacy of GI claims must turn on whether objective evidence exists to the effect that Art. 22.1 criteria are met. This article tests certain elements of the EU ‘Prosecco’ GI claim – that its qualities and characteristics are essentially attributable to the relevant location - against Italian production specifications to determine whether they provide evidentiary justification for the GI claim. This reveals evidence of absence of consistent qualities or characteristics in ‘Prosecco’ wine. The article additionally examines evidence explaining why this is so. The consequence of this conclusion is that the EU ‘Prosecco’ GI claim must rest solely upon the concept of ‘reputation’ for its legitimacy. Moreover, the approach taken by this article can be utilized to test the legitimacy of any GI claim so far as it relates to quality and characteristics.

 

February 4, 2023 | Permalink | Comments (0)

Friday, February 3, 2023

The No Surprises Act: A Conservative Band-Aid to Protect Business as Usual

Marc A. Rodwin (Suffolk University), Alan Sager (Boston University), The No Surprises Act: A Conservative Band-Aid to Protect Business as Usual, 53 Int’l J. Soc. Determinants Health & Health 1 (2023):

Hailed as a major reform, the No Surprises Act (NSA) is a profoundly conservative law that aims neither to reform design of insurance, to regulate fees, nor to limit health care spending. The NSA mitigates a perverse but narrow problem: unpredictable and uncontrollable high out-of-pocket bills for individuals who are unable to receive care within their insurance network. However, the NSA neglects to address the broader high medical costs, limited choice of caregivers, and the resulting insecurity and unfairness that characterize American health care. It allows caregivers to extract high payments and insurers to restrict choice of caregivers. Insurers can continue to employ ineffective cost controls that generate unpredictable high out-of-pocket costs for patients—and high levels of denial of payments to doctors and hospitals. The law amputated the most politically and visibly gangrenous consequences of unregulated private insurance in the United States in ways that enable business as usual in private health insurance to persist, subject to unnecessarily complex arbitration rules that magnify administrative waste.

February 3, 2023 | Permalink | Comments (0)

Right to Health under International Human Rights Law

Alan S. Gutterrman (Independent), Right to Health under International Human Rights Law (2023):

The right to health has been provided for and/or recognized in most of the core international human rights treaties as well as other international and regional instruments and declarations. While the right to health is recognized as an independent and fundamental right, it is closely related to and dependent upon the realization of other human rights such as the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, privacy and access to information. Health is also one of the primary targets included in the UN’s Sustainable Development Goals, with SDG 3 calling for ensuring healthy lives and promoting wellbeing for all at all ages. In addition, the Office of the UN High Commissioner for Human Rights has noted that “the treaty bodies that monitor the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child have adopted general comments or generation recommendations on the right to health and health-related issues” and “[n]umerous conferences and declarations … have also helped clarify various aspects of public health relevant to the right to health and have affirmed commitments to its realization.

February 3, 2023 | Permalink | Comments (0)

Online Appendix for Racial/Ethnic Disparities in COVID-19 Mortality: National Evidence from Death Certificates

Andy Yuan (Northwestern University), Vladimir A. Atanasov (William and Mary), Paula Natalia Barreto Parra (Northwestern University), Lorenzo Franchi (Northwestern University), et. al., Online Appendix for Racial/Ethnic Disparities in COVID-19 Mortality: National Evidence from Death Certificates (2023):

This Appendix provides additional data source and methods details and additional results for Atanasov et. al, COVID-19 Vaccine Effectiveness Against Death: Evidence from Linked Mortality and Vaccination Records (working paper 2022).

February 3, 2023 | Permalink | Comments (0)

Thursday, February 2, 2023

Bad Habits

Teneille R. Brown (University of Utah), Bad Habits, U. Utah C. L. Res. Paper 497 (2022):

Addiction is a puzzle. Depending on whom you ask, you might be told it is a physical brain disease, a response to trauma, a disability, a behavioral compulsion, a mental illness, the result of bad personal choices, or some combination of these. Addiction has defied easy classification because it straddles many binaries. It is physical and mental, behavioral and psychological, genetic and environmental, external and internal. There are aspects that involve personal choices and aspects that do not. Historically, addiction has been viewed largely as a moral failing. Only in the last few decades have advances in genetics, neuroscience, and the social determinants of health greatly complicated the story we tell about the causes of addiction--revealing many of the above binaries to be false. The more we learn, the more we realize that developing severe addiction has much less to do with moral fortitude, and much more to do with factors outside of our control.

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February 2, 2023 | Permalink | Comments (0)

Vaccine Development, the China Dilemma and International Regulatory Challenges

Peter K. Yu (Texas A&M University), Vaccine Development, the China Dilemma and International Regulatory Challenges, 55 N.Y.U. J. Int'l L. & Pol. (Forthcoming):

Since the World Health Organization declared COVID-19 a global pandemic in March 2020, countries, intergovernmental bodies, nongovernmental organizations and individual experts have called for the development of new global frameworks and adjustments to international regulatory standards. As the pandemic has become more successfully contained—at least in the global North—demands for emergency relief measures have given way to debates on the development of new standards to provide a more effective response during the inter-pandemic period and in the post-COVID era.

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February 2, 2023 | Permalink | Comments (0)