HealthLawProf Blog

Don't Let Death Be Your Deadline: Get A Will Before It's Too Late: Expand Holographic-Wills Law to Incentivize Will-Making

Angela M. Vallario (University of Baltimore), Don't Let Death Be Your Deadline: Get A Will Before It's Too Late: Expand Holographic-Wills Law to Incentivize Will-Making, U.Balt. Sch. of L. Legal Stud. Working Paper (2023): 

Procrastination is the number one reason for Americans’ lack of will-making. Many fail to get this important task completed before death despite acknowledging its importance. No one thing will remedy the lack of will-making in America. This Article suggests one way to address the problem is to more aggressively educate people on why a will is necessary, especially when blended families and children are part of the intestate’s family. The education efforts should target young adults in their senior year of high school and be further employed at universities, coupled with broader efforts to reach adults. Law students, in line with ABA303(a)(3), are uniquely situated to provide education to their communities and local area. Additionally, attorney-supervised law students could engage in will-making while simultaneously creating experiential learning opportunities.

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Racial Myopia in Family Law

Jessica Dixon Weaver (Southern Methodist University), Racial Myopia in [Family] Law, S.M.U. Sch. of L. Legal Stud. Working Paper No. 598 (2023): 

Racial Myopia in [Family] Law presents a critique of Family Law for the One-Hundred-Year Life, an Article that claims that age myopia within family law fails older adults and prevents them from creating legal bonds with other adults outside the traditional marital model. This Response posits that racial myopia is a common yet complex phenomenon in almost every area of law, and it presents most often by centering whiteness as the default standard while failing to ac-count for race and its impact on the law. Race—as well as the scholarship that incorporates race into normative family structure and identity—must be critically considered when proposing new ways of creating family units. This Response calls for active engagement with the racial history surrounding American family structures and the laws utilized to support them in order to achieve the goal of adapting family law to address the needs and interests of all older people.

The New Civil Code of China: Advancements and Improvements for a Better Future

Dr Wei Wen, (Sun Yat-sen University), The New Civil Code of China: Advancements and Improvements for a Better Future, Mich. St. U. Int'l L. Rev., Vol. 31.2 (2023): 

This article highlights four features of the new Civil Code of China and its enactment history to explain the significance of this long-expected Code.

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Retirement Plan Reforms in the Absence of a Retirement Policy

Natalya Shnitser (Boston College), Retirement Plan Reforms in the Absence of a Retirement Policy, B.C.L.Sch. Legal Stud. Working Paper No. 602 (2022): 

The US retirement system is currently characterized by tremendous diversity of instruments, institutions, and intermediaries in pursuit of the same goal. While the goal – achieving financial security in retirement – is widely accepted by policymakers and participants, for individuals in the United States, the nature of the “investment” experience in the retirement context varies considerably based on the identity, savviness, and size of the intermediaries, as well as the particular legal regime to which such intermediaries are subject.

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Unwired: Gaining Control over Addictive Technologies (Prologue and Chapter 1)

Gaia Bernstein (Seton Hall University), Unwired: Gaining Control over Addictive Technologies (Prologue and Chapter 1), Seton Hall L. Sch. Legal Stud. Working Paper No. (2023): 

Our society has a technology problem. Many want to disconnect from screens but can't help themselves. These days we spend more time online than ever. Some turn to self-help-measures to limit their usage, yet repeatedly fail, while parents feel particularly powerless to help their children.

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Discrimination on the Basis of Chronological Age: November 2022 Workshop Proceedings and Working Papers

Gerald L. Neuman (Harvard Law School), Discrimination on the Basis of Chronological Age: November 2022 Workshop Proceedings and Working Papers, (2023): 

This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of discrimination on the basis of chronological age, including discrimination against the young and against the old and against any ages in-between, and including both direct and discrimination (both practices with discriminatory intention and those with discriminatory impact), and also including a specific discussion of political rights of minors. The participants including current and former members of international and regional human rights institutions, judges, and academics from Harvard and other universities within and outside the United States. 

The Misapplication of the Major Questions Doctrine to Emerging Risks

Elissa Philip Gentry (Florida State University), W. Kip Viscusi (Vanderbilt University), The Misapplication of the Major Questions Doctrine to Emerging Risks, Hous. L. Rev., Vol. 61, No.3 (2024), Vand. L. Working Paper No. 23-20 (2023): 

Many regulatory agencies have authority to promptly protect against grave dangers—so long as the danger is not too grave, according to recent Supreme Court jurisprudence. Agencies are often delegated emergency authority to address risks rapidly, though temporarily, to protect the public from novel, virulent risks. If the risk not only affects the public’s health but also is of major political or economic significance, however, the U.S. Supreme Court has expressed a desire to limit this authority based on the major questions doctrine. Essentially, the circumstances in which agency action would be most beneficial are also the ones in which agency action is most in danger of being blocked. This Article argues that the application of the major questions doctrine to emerging risks not only lacks legal justification but poses significant physical peril. The Article presents novel empirical evidence undermining the conjectures used by the U.S. Supreme Court to usurp OSHA’s authority and provides guidance to agencies in how to survive elevated scrutiny in future emergency measures.

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The Constitutionality of Brain Searches

Wayne Unger (Gonzaga University), The Constitutionality of Brain Searches, Hastings Const. L.Q. (2023): 

If technology could read your mind and capture your thoughts as storable and processable data, would that frighten you? Recent advancements in brain-computer interfaces will likely make mind-reading a reality, and if it does, it presents the last stand or final frontier in the battle for privacy protections. It is well established that an individual must be able to retreat into their home and be free from government intrusion. But if an individual cannot retreat into their own mind free from government intrusion, then true solitude will become extinct. In a future state where brain-computer interfaces can actively decode an individual’s ideas, thoughts, and beliefs—neurodata—what constitutional protections, if any, exist to preclude government intrusion and protect the freedom of thought?

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Protecting the Promise to the Families of Tuskegee: Banning the Use of Persuasive AI in Obtaining Informed Consent for Clinical Drug Trials

Jennifer Bard (University of Cincinnati), Protecting the Promise to the Families of Tuskegee: Banning the Use of Persuasive AI in Obtaining Informed Consent for Clinical Drug Trials, San Diego L. Rev. (2023): 

This paper calls for a mortarium on the use of artificial intelligence technology (AI) that can manipulate human decision-making for the purpose of obtaining informed consent to participate in clinical drug trials. So-called “Persuasive” or “Emotion” AI is already widely used by the military and by private companies to engage in conversations with targeted individuals to induce them to make a decision that may not be in their own best interests. While this kind of manipulation is concerning when that decision is to launch a drone strike on a civilian target, vote for a particular client, or hire one job candidate over another, the failure of the United States, unlike the EU, to take any action to protect its citizens from AI mean that these actions are all currently legal. But the process of obtaining informed consent for research enjoys unique legal protection from federal laws passed in direct reaction to the unethical behavior of the U.S. Government in withholding treatment from Black Sharecroppers (formally known as the Tuskegee Syphilis Experiment.) This is a matter of particular concern now because of new NIH and FDA policies designed to increase the diversity of participants in clinical trials. In this article, I identify the features of Persuasive AI which would allow drug companies to undermine the free will of potential participants in ways that are both undetectable and impossible to remediate. Using original research into how drug companies are already using AI to identify and recruit potential participants, I argue that there is an urgent need for an immediate ban on its use because new laws mandating greater diversity in drug trials are creating a perverse incentive to manipulate and coerce the very populations who these federal laws were passed to protect.

Constitutional Contagion, The Courts, COVID, and Public Health

Wendy E. Parmet (Northeastern University), Constitutional Contagion, The Courts, COVID, and Public Health, Northeastern U. Sch. of L. Working Paper 435 (2023): 

More than three years after the start of the COVID-19 pandemic, the United States is an unhealthy nation. During the pandemic, the US lost more people per capita to COVID-19 than any other high-income country and life expectancy, which was lower in the US than in peer countries prior to the pandemic, has not rebounded, as epidemics of suicide, firearm deaths, overdoses and chronic diseases continue alongside COVID-19, to extract a terrible toll. These grim outcomes hide alarming racial, ethnic, and economic disparities.

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Understanding the Functioning of EU Geographical Indications

Andrea Zappalaglio (University of Sheffield), Understanding the Functioning of EU Geographical Indications, (2023): 

This contribution investigates the functioning of the EU sui generis Geographical Indication (GI) system, with a specific focus on the regime for the protection of agricultural products and foodstuffs within the scope of EU Regulation 1151/2012. In particular, based on the results of the recent “Study on the Functioning of the EU Geographical Indications System” of the Max Planck Institute for Innovation and Competition (February 2022), this paper: (1) clarifies the nature of EU GIs as it emerges from an empirical assessment of the specifications of all the products that appear on the EU register; (2) comparatively analyses the national practices of the EU Member States and explores the discrepancies that exist among them to date; (3) provides an in-depth assessment of the structures of the specifications of EU GIs, highlighting the domestic specificities; (4) investigates the contents and functions of the amendments to the specifications of the registered products. It concludes by emphasizing the importance of the present research in light of the current EU international agenda, with a specific focus on the bilateral agreements recently or currently negotiated.

A Critical Analysis of Consent in Human–Robot Interaction

Mona Naomi Lintvedt (University of Oslo), A Critical Analysis of Consent in Human–Robot Interaction, U. of Oslo Fac. of L. Working Paper 2023-01 (2023):

The use of advanced robots interacting with humans, especially in the health and care sector, will interfere with the personal autonomy and privacy of the users. A person can give permission to such interference by giving their consent. In law, the term ‘consent’ has different connotations dependent on the field of law and jurisdictions. A recurrent topic in robotics research is how consent can be implemented in human–robot interaction (HRI). However, it is not always clear what consent actually means. The terms ‘informed consent’ and ‘consent’ are used interchangeably with an emphasis on informational privacy, whereas the embodiment of robots also intervenes with ‘physical’ privacy. This lack of nuance leads to misconceptions about the role consent can play in HRI. In this chapter, I critically examine the perception and operationalisation of consent in HRI and whether consent is an appropriate concept at all. It is crucial for the adaptation of consent to understand the requirements for valid consent, and the implications consent have for deployment of robots, in particular in a health and care setting. I argue that valid consent to the use of AI-driven robots may be hard, if not impossible, to obtain due to the complexity of understanding the intentions and capabilities of the robot. In many instances, consent would not be appropriate in robotics because it would not be possible to have truly informed and free consent beyond a simple ‘yes’ or ‘no’. This chapter is a critical analysis which builds on the extensive scholarly critique of consent. As the chapter shows, robotics is yet another field where the shortcomings of consent are salient.

Multitasking, Complementarities, and Information Disclosure: Evidence from Food Hygiene Ratings in the U.K.

Dakshina G. De Silva (Lancaster University) , David Rietzke (Lancaster University), Anita R. Schiller (Lancaster University), Hisayuki Yoshimoto (University of Glasgow ), Multitasking, Complementarities, and Information Disclosure: Evidence from Food Hygiene Ratings in the U.K., (2023):

We analyze the role of cost complementarities in driving the overall impact of a recent hygiene-rating disclosure policy in the U.K. We develop a simple theoretical multitasking model, which serves as a platform for our empirical analysis. We conduct a counterfactual analysis, which reveals the extent to which complementarities drive overall hygiene ratings. Further, we conduct a policy experiment, which sheds light on the optimal design of hygiene-rating information disclosure policies. We also show the differential impact of the policy on different types of establishments.

Impact of the Profile of Public-Private Partnership Projects on the Economic Potential of Central Asian Countries

Kanat Tireuov (Kazakh National University), Salima Mizanbekova (Kazakh National University), Damira Aitmukhanbetova (Kazakh National University), Impact of the Profile of Public-Private Partnership Projects on the Economic Potential of Central Asian Countries, 6 E. J. Enter. Tech. 13 (2023):

The object of this study were projects based on public-private partnership. The results of the state of public-private partnership projects in various sectors of the economy of the Central Asian countries and the assessment of the prospects for their development are presented.

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Protecting the Promise to the Families of Tuskegee: Banning the Use of Persuasive AI in Obtaining Informed Consent for Clinical Drug Trials

Jennifer Bard (University of Cincinnati), Protecting the Promise to the Families of Tuskegee: Banning the Use of Persuasive AI in Obtaining Informed Consent for Clinical Drug Trials, San Diego L. Rev. (Forthcoming):

This paper calls for a mortarium on the use of artificial intelligence technology (AI)that can manipulate human decision-making for the purpose of obtaining informed consent to participate in clinical drug trials. So-called “Persuasive” or “Emotion” AI is already widely used by the military and by private companies to engage in conversations with targeted individuals to induce them to make a decision that may not be in their own best interests. While this kind of manipulation is concerning when that decision is to launch a drone strike on a civilian target, vote for a particular client, or hire one job candidate over another, the failure of the United States, unlike the EU, to take any action to protect its citizens from AI mean that these actions are all currently legal. But the process of obtaining informed consent for research enjoys unique legal protection from federal laws passed in direct reaction to the unethical behavior of the U.S. Government in withholding treatment from Black Sharecroppers (formally known as the Tuskegee Syphilis Experiment.) This is a matter of particular concern now because of new NIH and FDA policies designed to increase the diversity of participants in clinical trials. In this article, I identify the features of Persuasive AI which would allow drug companies to undermine the free will of potential participants in ways that are both undetectable and impossible to remediate. Using original research into how drug companies are already using AI to identify and recruit potential participants, I argue that there is an urgent need for an immediate ban on its use because new laws mandating greater diversity in drug trials are creating a perverse incentive to manipulate and coerce the very populations who these federal laws were passed to protect.

Children Seen but Not Heard

Stacey Steinberg (University of Florida), Children Seen but Not Heard, 66 Ariz. L. Rev. 2024 (forthcoming):

Children are expected to abide by the will of their parents. In the last 200 years, American jurisprudence has given parents the ability to control their children’s upbringing with few exceptions. The principle governing this norm is that parents know best, and they will use that better knowledge to protect their children’s welfare.

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Unbundling Social Security from the Payroll Tax

Henry Ordower (Saint Louis University), Unbundling Social Security from the Payroll Tax (2023):

To preserve social security as a welfare program primarily for older individuals and to ameliorate the distributional inequity of funding social security across income and wealth levels, this article recommends unbundling the benefit side of social security from its longstanding payroll tax funding mechanism. The article recommends replacing the payroll tax revenue with a budget allocation from general revenues accompanied by both revenue raisers and benefit limitations. Income tax rate increases linked to repeal of the FICA tax and tax expenditure limitations would enhance income tax revenue. Modifying social security benefits from their current overinclusive, entitlement structure for all to moderately needs-based entitlement possibly freed from the constraint of the current contribution requirement that makes social security underinclusive would help provide the older population an income facilitating dignified aging.

An Opportunity to Redesign the SECURE Act 2.0

Albert Feuer (Independent), An Opportunity to Redesign the SECURE Act 2.0, 51 Tax Mgmt. Comp. Plan. J. 4 (2023):

There has been much technocratic criticism of the SECURE Act 2.0’s elimination of catch-up contributions to 401(k) plans, 403(b) plans and 457(b) plans. This criticism disregards the effects of those catch-up provisions and those that increase the RMD. The SECURE Act 2.0 would better secure retirement equity if both those provisions were replaced by provisions that would help the tens of millions of workers struggling to accumulate adequate retirement savings. Moreover, more retirement equity would be created if SECURE Act 2.0 included more provisions to encourage better compliance with the retirement tax incentive rules including provisions to prevent those who violate the rules from benefiting from such violations.

Case Western Reserve University School of Law Presents Volume 33 of Health Matrix: The Journal of Law-Medicine

Case Western Reserve University School of Law recently published volume 33 of Health Matrix: The Journal of Law-Medicine.

Read the newest volume here. 

Legal Geography of Fake Pesticides in Chinese Courts, 1997-2017

Francis Snyder (Peking University), Legal Geography of Fake Pesticides in Chinese Courts, 1997-2017, Pecking U. Sch. Translational L. Res. Paper (2023):

This paper sketches the legal geography of cases concerning fake pesticides in Chinese courts from 1997 to 2017, the period of the first major pesticide legislation in China. It shows which cases were decided, which areas of law were involved, and identifies long-distance trade in fake pesticides as an outstanding policy issue. It also offers a new definition of 'fake' pesticides, revising commonly accepted definitions of intellectual property in the matter by referring to singularities and consumer protection.