HealthLawProf Blog

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

Sunday, June 16, 2024

The Constitutional Court of Romania establishes the retiree’s new constitutional right to work

Dragos Calin (Romanian Academy), The Constitutional Court of Romania establishes the retiree’s new constitutional right to work (2024):

The issue of combining the salary/pension is not a recent concern in Romania, as in 2017, the Court of Justice of the European Union itself had the opportunity to rule on the national legislation that prohibits the combining of a public pension with salary income from activities carried out in a public institution. 

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June 16, 2024 | Permalink | Comments (0)

Saturday, June 15, 2024

The Subsidy Trap: Explaining the Unsatisfactory Effectiveness of Hiring Subsidies for the Senior Unemployed

Axhana Dalle (Ghent University), Elsy Verhofstadt (Ghent University), Stijn Baert (Ghent University), The Subsidy Trap: Explaining the Unsatisfactory Effectiveness of Hiring Subsidies for the Senior Unemployed (IZA Discussion Paper No. 16804) (2024):

To extend the labour market participation of seniors, numerous countries provide subsidies to incentivise their recruitment or employment. Prior research demonstrates that the effectiveness of such subsidies is rather unsatisfactory, although the reasons for this inadequacy remain unclear. Therefore, we examined negative employer perceptions triggered by eligibility for such subsidies that might explain this disappointing effectiveness. To this end, we set up a vignette experiment in which 292 genuine recruiters assessed fictitious candidates on their hireability and underlying productivity estimations. These candidates differed experimentally in their eligibility for a hiring subsidy targeted at the unemployed aged 58 or over. Our results indicate that the subsidy has a negative effect on their hiring outcomes. This adverse effect is explained by negative perceptions that counteract the financial incentive. Specifically, the subsidised candidates signal lower physical and technological skills along with an augmented difficulty in hiring and labour inspection.

June 15, 2024 | Permalink | Comments (0)

Barriers to Connecting With the Voluntary Assisted Dying System in Victoria, Australia: A Qualitative Mixed Method Study

Ben White (Queensland University of Technology), Ruthie Jeanneret (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Barriers to Connecting With the Voluntary Assisted Dying System in Victoria, Australia: A Qualitative Mixed Method Study, 1 Health Expectations (2023):

Introduction: Voluntary assisted dying (VAD) is increasingly being legalised internationally. In Australia, all six states have now passed such laws, with Victoria being the first in 2019. However, early research in Victoria on the patient experience of seeking VAD shows that finding a connection to the VAD system is challenging. This study analyses the causes of this 'point of access' barrier. 

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June 15, 2024 | Permalink | Comments (0)

Saturday, June 8, 2024

Strategic Management in Conditions of Global Crisis (Стратешко управљање у условима глобалне кризе)

Venelin Terziev (Georgi Rakovski Military Academy), Strategic Management in Conditions of Global Crisis (Стратешко управљање у условима глобалне кризе) (2023):

English Abstract: In this publication we set an objectively complicated task to analyse the opportunities of strategic decision-making during crisis by attempting to make a partial analysis of the ongoing crisis caused by the COVID 19 pandemic and the emerged military conflict between the Russian Federation and Ukraine. Crisis circumstances require societies to quickly rethink and develop adequate strategies and respectively to formulate strategic goals and plan processes. In many cases preliminary analysis and assessment are practically impossible /especially when it comes to natural disasters or crises/ and this requires a different operational order of problem solving, which includes formulating new unconventional goals and then implementing planning not objectified by a particular and accurate analysis. All this puts whole systems and societies to the test, and those who are empowered to manage the process – under high pressure from unforeseen circumstances and not always objective judgments. Which, in turn, creates a number of subsequent critical issues in the management process.

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June 8, 2024 | Permalink | Comments (0)

Friday, June 7, 2024

Vegan Dairy: How the FDA Can Avoid Crying Over Spilled [Cow-Less] Milk

Keith Topper (St. John’s University), Vegan Dairy: How the FDA Can Avoid Crying Over Spilled [Cow-Less] Milk, 79 Food and Drug L. J. (forthcoming):

A food product designation of vegan has always inherently implied a classification of dairy-free; however, the recent agricultural advancement of precision fermentation has changed this. By producing artificial dairy without the use of cows, manufacturers are able to label a product as vegan even though the product is not dairy-free, thereby creating the “vegan loophole.” Although a seemingly insignificant technicality, the vegan loophole can be fatal for people who suffer from conditions that involve dairy allergies, such as Galactosemia. Consumers, including those who are not impacted by food allergies, have come to rely on the presence, or absence, of the term vegan on food packaging as a basis for ingredient label-reading. The advent of manufactured dairy threatens to disrupt ingredient label-reading practices that have been in place for decades. This paper addresses several possible approaches that the Food & Drug Administration could take to close the vegan loophole.

June 7, 2024 | Permalink | Comments (0)

Thursday, June 6, 2024

Leveraging the Medicaid Expansion

David A. Hyman (Georgetown University), Charles Silver (University of Texas at Austin), Leveraging the Medicaid Expansion (2023):

In response to provisions in the Patient Protection and Affordable Care Act (PPACA), 40 states and the District of Columbia expanded their Medicaid programs – resulting in roughly 20 million American gaining state-run (but mostly federally funded) health insurance. Despite these coverage gains, 27 million Americans (8.3%) still do not have health insurance. To address this problem, the obvious targets of opportunity are the 10 states (Alabama, Florida, Georgia, Kansas, Mississippi, South Carolina, Tennessee, Texas, Wisconsin, and Wyoming) that have refused to expand their Medicaid programs. The hold-out states have specific fiscal challenges, constraints, and governance cultures that any reform proposal must address. We propose that rather than adhering to Medicaid’s traditional structure, where states pay providers at unreasonably low rates for treating beneficiaries, expansion projects should be modeled on Social Security and the Earned Income Tax Credit, both of which distribute money that recipients can spend as they wish. This simple but fundamental design change would ameliorate or eliminate many of the major problems that existing third-party payment arrangements foster. It would also enhance beneficiaries’ access to care by enabling them to pay market rates. Reform offers the potential to promote effective state-level governance, while simultaneously improving healthcare, budgeting, and the cost-effectiveness of state and federal spending. From a distributional perspective, the beneficial consequences will be disproportionately captured by the sizeable Latino and African American populations in these ten states.

June 6, 2024 | Permalink | Comments (0)

The COVID-19 Pandemic, Prison Downsizing, and Crime

Charis E. Kubrin (University of California, Irvine), Bradley Bartos (University of California, Irvine), The COVID-19 Pandemic, Prison Downsizing, and Crime Trends, J. of Contemp. Crim. Just. (2023):

California has fundamentally reformed its criminal justice system. Since 2011, the state passed several reforms which reduced its massive prison population. Importantly, this decaceration has not harmed public safety as research finds these measures had no impact on violent crime and only marginal impacts on property crime statewide. The COVID-19 pandemic furthered the state’s trend in decarceration, as California reduced prison and jail populations to slow the spread of the virus. In fact, in terms of month-to-month proportionate changes in the state correctional population, California’s efforts to reduce overcrowding as a means to limit the spread of COVID-19 reduced the correctional population more severely and abruptly than any of the state’s decarceration reforms. Although research suggests the criminal justice reforms did not threaten public safety, there is reason to suspect COVID-mitigation releases did. How are COVID-19 jail downsizing measures and crime trends related in California, if at all? We address this question in the current study. We employ a synthetic control group design to estimate the impact of jail decarceration intended to mitigate COVID-19 spread on crime in California’s 58 counties. Adapting the traditional method to account for the “fuzzy-ness” of the intervention, we utilize natural variation among counties to isolate decarceration’s impact on crime from various other shocks affecting California as a whole. Findings do not suggest a consistent relationship between COVID-19 jail decarceration and violent or property crime at the county level.

June 6, 2024 | Permalink | Comments (0)

Wednesday, June 5, 2024

A Values-Based Argument for Universal Healthcare in the United States

Hugh Hankenson (Harvard University), A Values-Based Argument for Universal Healthcare in the United States (Harv. U. Health Pol’y Rev.) (2023):

It is unacceptable that the United States, which prides itself on being a global power and proponent of democracy, deprives its citizens of the access to quality, affordable healthcare that all people deserve. Contrary to frequent arguments that national healthcare systems inherently contravene core American values, I argue that a system of universal healthcare must instead be constructed to fully realize these ideals — principally, innovation, quality, and liberty of choice.

June 5, 2024 | Permalink | Comments (0)

Gene Stewards: Rethinking Genome Governance

Shelly Simana (Harvard Law School), Gene Stewards: Rethinking Genome Governance, 14 UC Irvine L. Rev. (forthcoming 2024):

Various entities, such as genetic testing and biotech companies, biobanks, research institutions, and government agencies, collect, analyze, and share human genetic material and information. When maximizing the benefits they obtain from these resources, such entities frequently employ exploitative practices that take advantage of power and information asymmetries. For example, they require individuals to waive property rights over genetic material and information, use these resources for purposes other than those for which they were obtained without the individuals’ knowledge or comprehension of the implications, or collect these resources surreptitiously. Exploitative practices steer genetic material and information toward the ends of powerful entities while undermining individuals’ property and privacy interests. They result in “appropriative harms.”

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June 5, 2024 | Permalink | Comments (0)

Tuesday, June 4, 2024

Financing Reforms to Meet a Pivotal Moment in Global Health

Kevin A. Klock (Georgetown University Law Center), Alexandra Finch (Georgetown University), Lawrence O. Gostin(Georgetown University), Financing Reforms to Meet a Pivotal Moment in Global Health (Geo. U. L. Center Rsch. Paper No. Forthcoming) (2024):

2024 will be the most important moment for global health since the World Health Organization’s founding in 1948, but only if states give major reforms their full political and financial backing. Bold new commitments in disease surveillance, capacity building, and more equitable access to health products cannot be achieved without ample and sustainable funding. In this essay, we discuss major reforms found in the emerging pandemic agreement and reformed International Health Regulations and then explore the significant challenges and opportunities for financing them.

June 4, 2024 | Permalink | Comments (0)

The Ethical Limits of Markets: Market Inalienability

Kimberly D. Krawiec (University of Virginia), The Ethical Limits of Markets: Market Inalienability (Va. L. and Econ. Rsch. Paper No. 2024-14) (2024):

Although ethical critiques of markets are longstanding, modern academic debates about the “moral limits of markets” (MLM) tend to be fairly limited in scope. These disputes center, not on the dangers of markets per se, but on the dangers of exchanging particular items and activities through the marketplace. Proponents of MLM theories thus do not want to eliminate markets entirely, but instead seek to identify the moral and ethical boundaries of the marketplace by considering which goods and services are inappropriate for market trading. This chapter summarizes and categorizes some of the more important arguments within this debate, with a focus on recent research, controversies, and applications. The goal is to provide an overview of these debates, highlighting some of the topics that have generated robust discussion, particularly when relatively recent empirical or theoretical work may shed new light on a topic. Specifically, I focus on crowding out, corruption, leaving a space for altruism, equality, and a trio of related debates regarding paternalism (coercion, unjust inducement, and exploitation).

June 4, 2024 | Permalink | Comments (0)

Monday, June 3, 2024

Occupational Hazard? An Analysis of Birth Outcomes Among Physician Mothers

Anupam Jena (Harvard University), David Slusky (University of Kansas), Lilly Springer (University of Kansas), Occupational Hazard? An Analysis of Birth Outcomes Among Physician Mothers (IZA Discussion Paper No. 16655)(2023):

Training to become a physician involves long work hours that can be physically demanding, particularly for surgeons. Are birth outcomes of physician mothers affected as a result? Using Texas birth data from 2007-2014, we compared birth outcomes between physicians and another highly educated group, lawyers, and between surgeons and non-surgeon physicians. Further, using a difference-in-differences framework, we examine whether the Accreditation Council for Graduate Medical Education 2011 duty hour reform, which lowered trainee work hours, impacted the birth outcomes of babies born to physicians compared with lawyers. We find that physicians have lower birth weights and shorter pregnancies than lawyers with the results driven by physicians in surgical specialties. However, the duty hour reform appears to not have impacted birth outcomes. Thus, we find that physicians tend to have worse birth outcomes than lawyers and, in this case, the work reform did little to address the difference.

June 3, 2024 | Permalink | Comments (0)

Second-Class Administrative Law

Matthew B. Lawrence (Emory University), Second-Class Administrative Law, Wash. U. L. Rev. (forthcoming 2024):

Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary. 

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June 3, 2024 | Permalink | Comments (0)

Sunday, June 2, 2024

The Right to Health and Universal Health Coverage in India

Centre for Health Equity, Law and Policy (Indian Law Society), The Right to Health and Universal Health Coverage in India (2023):

This paper analyses the Right to Health in India, highlights its linkages with Universal Health Coverage, illustrates the many practical ways in which law and policy intersect with the right to health, and examines the practical implications of the right to health for UHC in India.

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June 2, 2024 | Permalink | Comments (0)

Innovation policy beyond patents: A case study on the development of climate-friendly fertilizers

Axel Metzger (Humboldt University of Berlin), Chiara Kusch (Humbolt University of Berlin), Innovation policy beyond patents: A case study on the development of climate-friendly fertilizers (2024):

Nitrogen fertilizers have revolutionized agriculture since the early 20th century and made a decisive contribution to combating hunger in the world. Nevertheless, the technology is controversial today because production is energy-intensive and contributes significantly to climate change. In addition, conventional fertilizers pollute groundwater, rivers and coastal waters. Synthetic nitrogen fertilizer is made from ammonia (NH3) produced by the Haber-Bosch process, for which a patent was filed with the German Imperial Patent Office in 1908 (DE235421). For the urgently needed development of modern climate-friendly fertilizers, patent law seems to play a minor role so far. The large and patent-active agrochemical corporations in the industrialized countries are focusing on other technologies leaving fertilizer production to companies with direct access to energy below the global market price. Another reason for the reluctance of the Western high-tech chemical industries is the still very generous regulation of nitrogen fertilizers. For farmers, the use of less climate-damaging fertilizers is not worthwhile. However, the disruption of supply chains in the wake of Russia’s aggression in Ukraine and the aggravation of climate change could now lead to a rethink. First support programs for the development of climate-friendly, innovative America-made “next generation” fertilizers have been launched. The paper examines the interplay of patent law in concert with regulatory law and government funding tools in the area of innovative fertilizers. It starts from the hypothesis that other legal frameworks have a stronger influence on innovation activity in this field than patent law at the moment. But this could change once the regulatory framework would impose stricter requirements for the use of fertilizers.

June 2, 2024 | Permalink | Comments (0)

Monday, May 27, 2024

Disabling Abortion Bans

Robyn Powell (University of Oklahoma), Disabling Abortion Bans, U.C. Davis L. Rev. (forthcoming 2024):

In the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, states have rushed to enact restrictive abortion bans, often with vague and narrow health exceptions that disproportionately endanger the lives and well-being of people with disabilities. This Article argues that focusing on the disproportionate impact of these laws on disabled people is a critical strategy for dismantling the broader attack on reproductive freedom. It examines the deficiencies of current health exceptions, critiquing their subjective language, inconsistent application, and failure to account for the complexities of medical emergencies, particularly in the context of disability. The Article highlights the omission of mental health considerations and clashes between state and federal laws. Furthermore, it explores how these bans exacerbate existing barriers disabled people face when seeking healthcare while ignoring the disproportionately high risks of pregnancy-related complications and maternal mortality among the disability community. Drawing on constitutional arguments, the Article contends that even under rational basis review, these bans lack a legitimate governmental interest and instead perpetuate discrimination by contradicting core disability rights principles of bodily autonomy and self-determination. It explores potential avenues for challenging these laws, including leveraging state constitutional provisions, expanding health exceptions, and protecting abortion providers through statutory presumptions and burden-shifting provisions. The Article emphasizes the importance of moving beyond a purely medicalized framing of abortion rights and toward a more holistic, intersectional vision of reproductive justice that fully includes and empowers the disability community. It concludes with a call for robust coalition-building between the disability rights and reproductive justice movements to drive incremental change and ensure that reproductive autonomy is respected and protected for all.

May 27, 2024 | Permalink | Comments (0)

New York Retirement Plans for Public Employees Can Leave Surviving Spouses With Nothing - It's Past Time To Change That

Albert Feuer, New York Retirement Plans for Public Employees Can Leave Surviving Spouses With Nothing - It's Past Time To Change That, 96 NYSBA J. (2024):

Surviving spouses of retired New York public employees may learn soon after burying their spouses that they will receive no plan survivor benefits because the default retirement benefits of all those plans is an annuity whose payments end at the retiree’s death. 

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May 27, 2024 | Permalink | Comments (0)

Sunday, May 26, 2024

Establishing Law in Context: An Insider's Perspective

Francis Snyder (Peking University), Establishing Law in Context: An Insider's Perspective (Peking U. Sch. of Transnat’l L. Rsch. Paper) (2024):

The Law in Context Movement was a revolution in legal studies. This blog traces its origins and development from the 1990s till today and outlines various contributions to law teaching and research, such as the International Workshop of Young Scholars (WISH) , the ELJ from 1995 to 2014 and today's journal published by Cambridge University Press, European Law Open.

May 26, 2024 | Permalink | Comments (0)

Food as Culture: Framing, Legal Harmonization, and Transnational Law as a Regulatory Gateway

Lucas Lixinski (University of New South Wales), Food as Culture: Framing, Legal Harmonization, and Transnational Law as a Regulatory Gateway (UNSW L. Rsch. Paper No. 66) (2024):

This chapter engages with the challenges of legal harmonization, which is the design and implementation of uniform legal rules across multiple jurisdictions on a specific subject matter. Specifically, this chapter examines the challenges of harmonizing food law, and whether and how international law can help in this space. The chapter examines the multiple different legal framings of food in international law, each of which invoke different values and priorities, culminating with consideration of what it means to frame food as primarily a form of culture. Examining the example of Mexican traditional cuisine, this piece argues for greater engagement with culture in our conversations about legal harmonization more broadly, and specifically in the domain of food law.

May 26, 2024 | Permalink | Comments (0)

Saturday, May 25, 2024

"Burn My Body with Water!": Legality of Water Cremation in Malaysia

Haeme Hashim (HAEME Asia LLP), "Burn My Body with Water!": Legality of Water Cremation in Malaysia (2023):

This article delves into the legality of aquamation, also known as water cremation, in Malaysia, while also examining potential amendments required in existing legal frameworks. It explores the intricate intersection of traditional cremation methods and emerging environmentally-friendly alternatives, highlighting the need for a comprehensive legal assessment in a contemporary context. By addressing the regulatory gaps surrounding aquamation, this discussion aims to shed light on the potential for harmonizing funeral practices with evolving societal and environmental values. Ultimately, it underscores the importance of adapting legal structures to accommodate innovative approaches to end-of-life rituals, promoting a more sustainable and compassionate approach.

May 25, 2024 | Permalink | Comments (0)