HealthLawProf Blog

Legal Considerations for Offering Metaverse-Based Education

Jon Garon (Nova Southeastern University), Legal Considerations for Offering Metaverse-Based Education (2023):

Although the metaverse is still in its early stages, those emerging metaverse platforms such as Roblox and Fortnite have over 400 million monthly active users, the majority of which are 13 or younger. A generation of learners and future citizens are emerging from a future that is not evenly distributed or well understood by the parents, educators, and policy makers who provide resources and establish educational policy.

Continue reading

Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws

Robyn Powell (University of Oklahoma), Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws, Washington U. L. Rev. (Forthcoming):

Although the fundamental right to raise a family is among our m ost cherished, it is not equally afforded to everyone. Indeed, the United States has an appalling and enduring history of policing parenthood among people with disabilities. In recent years, the rights of parents with disabilities and their children have garnered unprecedented attention from activists, scholars, legal professionals, and policymakers. Nevertheless, the number of disabled parents who have their parental rights terminated is substantial and growing. As such, the roots of these ongoing injustices must be investigated. To that end, because the family policing system, including termination of parental rights, is primarily governed by state statutes, such an interrogation must begin there.

Continue reading

Older Persons and Climate Action

Alan S. Gutterman (Independent), Older Persons and Climate Action (2022):

Despite arguments, and some polling evidence, to the contrary, older adults are just as concerned as younger people about climate change; however, uncertainty remains about the optimal strategies for leveraging the resources that older people can bring to the debate surrounding climate change. One big problem is misconceptions about the physical and mental capabilities of older persons and their ability to contribute to climate action and there have been calls for a reframing of the general aging narrative in US society to emphasize that older adults represent a precious form of human capital with the potential to contribute creatively and constructively solving urgent societal problems, including those associated with climate change. The UN High Commissioner for Human Rights has argued that older persons possess enormous knowledge, experience, skills and resilience that give them the capacity to be key contributors in global efforts to mitigate and adapt to the negative impacts of climate change. The OHCHR emphasized the various ways in which older persons bring unique and important contributions to climate action, including supporting their families and communities financially and through informal care work, contributing to decision-making and conflict resolution, imparting important knowledge of science, history, tradition and culture and wielding significant voting and economic power that can be mobilized for effective climate policy. This chapter explores how older people can be involved in climate action as volunteers, voters, consumers and active participants in setting priorities and policies for addressing climate change.

“Just Do Something,” But Not that: The Structural Harms of Providing Mental Health Services Through the Bipartisan Safer Communities Act

Heather Swadley (Swarthmore College), “Just Do Something,” But Not that: The Structural Harms of Providing Mental Health Services Through the Bipartisan Safer Communities Act, Nebraska L. Rev. (Forthcoming):

Many have proclaimed that the Bipartisan Safer Communities Act is most sweeping gun control legislation to be passed in decades. However, the bill is not primarily a gun control bill—instead, much of the Act seeks to improve mental health services in hopes of preempting gun violence. Such a move is not rooted in established evidence, which finds little predictive value in knowing a someone’s mental health history. In fact, people with mental health disabilities are more likely to be victims of violent crimes than perpetrators. The Act therefore shifts the debate about gun reform from one about easy access to guns to one about improving mental health services. This is not without consequence.

Continue reading

The Law-Medicine Center at Case Western Reserve University School of Law Will Be Hosting a Talk Entitled: Prescribing Algorithmic Discrimination

Prescribing Algorithmic Discrimination, Wednesday, April 5^th 2023 at 12:00 PM- 1:00 PM

The talk will discuss the rise of federally-funded, state-operated prescription drug monitoring programs (PDMPs), the algorithmic risk scores they generate, the lack of validity of those scores, and their potential to discriminate against various protected classes, including women, racial minorities, and individuals with disabilities and, thereby, provoke poor health outcomes.  The talk will conclude with proposed legal and policy solutions intend to mitigate the potential discriminatory impacts of PDMP algorithmic risk scoring.

 

Our Presenter

Jennifer Oliva

Professor of Law, University of California Hastings College of Law

Register now for the April 5^th event!

Evaluating the Carceral Kitchen: A Qualitative-Abductive Approach

Robb Elton (National University), Evaluating the Carceral Kitchen: A Qualitative-Abductive Approach (2022):

The U.S. criminal justice industrial complex (CJIC) consumes goods and services from industries ranging from health care, textiles, wood, metal to many products and proprietary strategies related to security, including specific architectural engineering designs. There are unfortunately millions of prisoners at any given time throughout facilities operated by numerous jurisdictions across the United States. The prisoners must be clothed, have access to health care, and they maintain a number of other rights under the U.S. Constitution. Prisoners must also be fed, thus, the CJIC also demands adequate food services, related staffing levels, including adequately trained and vetted personnel. Related to the CJIC are the policies, procedures, and laws governing limitations and carceral activities which affect logistics. The rationale for these rules must be understood by non-prisoners and potential employees of the CJIC alike, specific to the prison kitchen (carceral kitchen). The purpose of this article is to extrapolate reasons for the disparate absence of managerial, administrative literature from this sector, and perhaps that answer can be found in the ways and manner these environs (carceral kitchens) likely differ from commercial kitchens. The research draws upon author observation and experiences from commercial and carceral kitchens. The findings from this research are hopefully informative for future students/graduates in related fields in that it infers opportunities and skills applicable for applying culinary arts and food service in carceral kitchen systems. The findings suggest that geography/security strategy inhibits access to professional/academic opportunities. Additionally, however this niche can be a place for advancement and opportunity for entry level workers while at the same time demand creativity and managerial prowess/people skills.

The Rise and Fall of the Mental Health Inquiry for Bar Admission

Colin M. Black (Suffolk University), The Rise and Fall of the Mental Health Inquiry for Bar Admission, 50 Capital U. L. Rev. (2022):

For millennia, legal advocates have been expected to have good moral character. There can be no doubt that effective lawyering requires honesty and integrity. Over the years, how character is defined for practitioners has changed. In the 1970’s, the American Bar Association began evaluating bar applicant mental health as part of the good character evaluation. Ostensibly, this was done to protect the public and the administration of justice. In 2017, the American Bar Association recommended the elimination of the mental health questions on the character and fitness portion of the application to the bar. Notwithstanding, many jurisdictions continue to inquire into an applicant’s mental health status as a prerequisite to admission. Recently, however, the growing concern for lawyer well-being has highlighted the criticisms of this prophylactic inquiry. There is little evidence of a causal connection between mental health issues and unethical lawyering. Additionally, meritorious disability discrimination claims have warranted a reexamination of the practice of inquiring about the mental health of bar applicants. To be sure, the American Bar Association, bar authorities, law schools, and local bar organizations have all implemented various programs addressing the symptoms of the profession’s mental health crisis, including changes, and in some cases, the complete elimination of the mental health inquiry of the character and fitness evaluation portion of the bar application. All of these actions lead the author to conclude that the practice of inquiring about a bar applicant’s mental health serves no apt purpose nor predicts the ultimate elimination of the inquiry completely.

A Look at the Current Status of the CRISPR Patent Interferences Involving Broad Institute, University of California and University of Vienna, ToolGen, and Sigma-Aldrich

Christopher M. Holman (University of Missouri), A Look at the Current Status of the CRISPR Patent Interferences Involving Broad Institute, University of California and University of Vienna, ToolGen, and Sigma-Aldrich, 41 Biotechnology L. Rep. 169 (2022):

This article reports on recent developments in patent interference proceedings relating to use of CRISPR-Cas9 for gene editing in a eukaryotic environment. The article begins with a brief overview of some substantive and procedural aspects of patent interference law of particular relevance to these proceedings, followed by a summary of the status of the interferences at the time this article was written, based primarily on information gleaned from the declarations of interference and motions filed by the various parties. It concludes with some thoughts on how things might ultimately settle out in the fight to control the patents in this important technological space.

Conjuring the Flag: The Problem of Implied Government Endorsements

Michael Mattioli (Indiana University), Conjuring the Flag: The Problem of Implied Government Endorsements, 83 Maryland L. Rev. (2024):

This Article exposes a prevalent and harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze thousands of ads across multiple media formats, this Article offers the first empirical study of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the data shows that patents are mentioned most frequently in ads for supplements, cleansers, cosmetics, insect sprays, and hair products. It also shows that the USPTO contributes to the problem by registering trademarks that incorporate regulatory references. Consumer protection laws and regulations have failed to curb this practice, as advertisers have found subtle and legally permissible ways to manipulate consumer perception. This Article proposes two legal reforms to empower the FTC to address this issue more effectively. This Article thus sheds light on a crucial intersection of intellectual property, consumer protection, and administrative law.

Enough Excuses on Drug Importation a New Transnational Paradigm for FDA Regulation and Lower U.S Drug Prices

Gabriel Levitt (Brooklyn Law School), Enough Excuses on Drug Importation a New Transnational Paradigm for FDA Regulation and Lower U.S Drug Prices, 49 Brooklyn J. Int’l L. 1 (2023):

The U.S. Food and Drug Administration (“FDA”), which enforces drug safety laws, asserts that under most circumstances the importation of prescription drugs is illegal. Yet because of high drug prices in the United States, over the past couple of decades, tens of millions of Americans have imported prescription drugs for personal use. For many, this was their only way to afford them. A unique array of federal laws, regulations, and policies, including the de facto decriminalization of the practice of personal drug importation, have in effect permitted personal drug importation. The same exceptions, however, are not available for commercial drug importation, also called wholesale or parallel importation. While personal drug importation has helped many people afford prescription drugs and could help even more with the correct use of executive authorities and public support, a longer-term solution to high drug prices in the U.S. may require larger, commercial-scale drug importation.

Continue reading

The Techno-Optimist Case for Addressing Sustainability and its Grounding in Capitalist (Market) Incentives

Daniel R. Cahoy (Pennsylvania State University), The Techno-Optimist Case for Addressing Sustainability and its Grounding in Capitalist (Market) Incentives (2023):

The effort to create a more sustainable society touches on many facets of the environment, public policy and social responsibility. We seek solutions to the negative impacts of climate change, a lack of access to medicines, environmentally friendly sources of energy that will permit continued economic progress, and sufficient food to feed a world of ten billion people. Many say that a conservation-based approach that restores humanity to a more natural state is the best path forward. But to others, the only way out of our predicament is the way we got in: technology. A “techno-optimist” mindset views sustainability issues largely as problems that can be solved through invention and investment. But is techno-optimism a realistic strategy for creating a more sustainable world? This chapter first explores the nature of techno-optimism as a contrast to "eco-pessimism," considering how the former pushes technology-based solutions while the latter focuses on conservation and reduction. The chapter then demonstrates the fundamental connection between technology incentives and capitalism, looking particularly to increasingly harmonized legal systems that have created an ever-broader base for innovation. Finally, it considers evidence that technology-based solutions are more than a distraction or palliative by looking at the contexts of disease, food security, water and energy production.

The Future of Pandemics: Land Use Controls as Means of Preventing Zoonotic Disease

Bailey Andree (Pace University), The Future of Pandemics: Land Use Controls as Means of Preventing Zoonotic Disease, 35 Pace Int’l L. Rev. 1 (2022):

Zoonotic diseases are increasing in frequency as climate change worsens around the world, with the recent COVID-19 pandemic highlighting the inadequate mechanisms in place to counteract disease spread. This article reviews various zoonotic diseases and their patterns of spread, highlighting land use change as the key driver of disease to demonstrate the need for legal intervention. International land use law is a little-developed subsect of environmental law that holds the key to combating this disease spread, and this article proposes solutions through this legal lens. Land use techniques which may be used to combat disease spread include conservation laws, setback and buffer requirements, increased density in development, variances, environmental impact assessments, land-based financing, and variances, in addition to international treaties.

Corrupt or Charitable? Patient Assistance Programs and the Case for Narrowing the Breadth of the Federal Anti-Kickback Statute

Isaac Strauss (Yeshiva University), Corrupt or Charitable? Patient Assistance Programs and the Case for Narrowing the Breadth of the Federal Anti-Kickback Statute, 44 Cardozo L. Rev. 2 (2022):

This Note surveys how the Federal Anti-Kickback Statute serves to penalize helpful healthcare arrangements in which pharmaceutical companies seek to assist patients with their cost-sharing obligations under Medicare Part D.

Continue reading

Equality Emerges As a Ground for Abortion Rights In and After Dobbs

Cary Franklin (University of California, Los Angeles), Reva Siegel (Yale University), Equality Emerges As a Ground for Abortion Rights In and After Dobbs (2023):

Equality as well as liberty arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. We draw on case law, history, and common sense to show that principles of equal citizenship require government to protect potential life in different ways today than it has in the past, when criminal bans on abortion enforced caste-based understandings of women’s roles. While states enforcing gender status roles have long assumed that government can coerce the labor of lifegiving, equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.

Beyond Traditional IP: Addressing Regulatory Barriers

Cynthia M. Ho (Loyola University of Chicago), Beyond Traditional IP: Addressing Regulatory Barriers, Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Cambridge U. Press, Forthcoming 2023):

The COVID pandemic has underscored that IP can limit the ability to addressing public health crises because IP owners have the legal right to bar others from making needed supplies. However, what is less well understood yet critical to making medical treatments available are IP-related barriers existing in regulatory laws that complement traditional IP protection. In other words, even if a potential manufacturer of a needed treatment can obviate patent and trade secret hurdles, that manufacturer could be thwarted due to less well understood regulatory barriers.

Continue reading

A Legislative Cuff around the Pharmaceutical Industry in Pakistan

Shan Ali (Bahria University Islamabad), Hamza Khalid Niazi (Independent), Syed Zaheer Hussain Shah (Bahria University Islamabad), Sadia Tanveer (Independent), A Legislative Cuff around the Pharmaceutical Industry in Pakistan, 8 J. Islamic Countries Soc’y Statistical Sciences 3 (2022):

The profit-oriented pharmaceutical industry, carrying its shady designs beyond ethical considerations, is exploiting the patent rights laws of Pakistan, against the very interests of poverty-stricken people, which is sheer legal opportunism, necessitating a comprehensive set of legal rules under a sincere and holistic approach for the best protection of the right to health and medical transparency. The case study is done to countercheck the effectiveness of judicial precedent combined with relevant legislation on the successful implementation of the International Patent regime in accessibility and availability of medicines. The research also maps out significant strategies to be adopted by Pakistan for the protection of patent rights but not at the expense of grievances caused by pandemics or common person health measures.

Access to Post-secondary Education in Canada for Students with Disabilities

Laverne Jacobs (University of Windsor), Access to Post-secondary Education in Canada for Students with Disabilities, Int'l J. Discrimination & L. (Forthcoming):

Article 24(1) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) provides a commitment to the full development of human potential and of the student’s sense of dignity and self-worth, as well as a commitment to develop the student’s personality, talents, and creativity, along with their mental and physical abilities, to their fullest potential. Article 24(5) builds on this commitment by guaranteeing persons with disabilities access to general tertiary (or post-secondary) education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. Yet, on the ground, within educational institutions, disabled post-secondary students continue to face barriers to education every day.

Continue reading

Neuro-Prediction & AI Confluence in Forensic/Criminal Justice System

Ekata Deb (Christ University), Neuro-Prediction & AI Confluence in Forensic/Criminal Justice System (2022):

Artificial intelligence and Machine Learning are increasingly used in fundamental science and clinical neurology. Large multimodal datasets may be interpreted using AI techniques, offering impartial insights into the underlying principles of brain activity. This might pave the way for faster and more precise diagnoses of brain illnesses and better-informed treatment procedures. While AI can make precise predictions and classifications, it often cannot explain how inputs and outputs mechanically connect to one another. Here, a brief analysis of state of the art is presented with an overview of some of the latest techniques in explainable artificial intelligence (XAI), which aims to provide such an explanation.

Does Inclusive Healthcare Encourage Online Mutual Aid?

Sijia Zhou (City University of Hong Kong), Jianshan Sun (Hefei University of Technology), Xin Li (City University of Hong Kong), Yong Tan (University of Washington), Does Inclusive Healthcare Encourage Online Mutual Aid? (2022):

Online platforms significantly facilitate prosocial activities by making it easier for help seekers to find help providers. Nevertheless, a critical issue is whether the users, especially underprivileged users, in prosocial platforms would like to help each other. In this paper, we investigate if external support of inclusive healthcare would trigger mutual-aid actions of underprivileged individuals, which could facilitate their self-reliance. We considered the perspective of truck drivers in China, a unique social group active in online mutual aid, and linking the data of an online mutual-aid community for truck drivers with data on China’s free rural medical checkup program to conduct the study. After addressing the identification challenges, surprisingly, we found that free medical checkups for truck drivers’ households reduced their online mutual-aid behavior. In contrast, the guidance provided to them by physicians mitigated this negative effect. We provide evidence that this may be because underprivileged users consider medical checkups as help-seeking and guidance as help-received. We also show how receiving help from inclusive healthcare could trigger users’ gratitude and increase their sociality, which facilitates mutual aid activities. The findings suggest that policymakers should encourage physician guidance within inclusive healthcare to improve sustainable development of underprivileged people.

The Scalia Court: Environmental Law's Wrecking Crew Within The Supreme Court

Richard Lazarus (Harvard Law School), The Scalia Court: Environmental Law's Wrecking Crew Within The Supreme Court, 47 Harv. Envtl. L. Rev. 2 (2023):

In West Virginia vs. EPA, a conservative majority within the Supreme Court announced this past June a sweeping ruling, traceable to the opinions of former Justice Scalia, that seriously threatens environmental law’s ability to safeguard public health and welfare. In sustaining former President Trump’s repeal of the Clean Power Plan — an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil fuel-fired power plants — the West Virginia Court insisted that there must be “clear congressional authorization” to support any significant and important rule like the Clean Power Plan.

Continue reading