HealthLawProf Blog

Exiting Prison with Complex Support Needs: The Role of Housing Assistance

Chris Martin, Rebecca Reeve (University of New South Wales), Ruth McCausland (University of New South Wales), Eileen Baldry (University of New South Wales), Pat Burton (University of Tasmania), Rob White(University of Tasmania), Stuart Thomas (RMIT University), Exiting Prison with Complex Support Needs: The Role of Housing Assistance, AHURI Final Report (2021):

This research examined policies and programs relevant to the housing pathways of ex-prisoners with complex support needs in NSW, Victoria and Tasmania, including what criminal justice costs and benefits result from current housing assistance settings.

Digital Accessibility Rights Evaluation Index

Martin Gould, Axel LeBlois, Francesca Bianchi, Digital Accessibility Rights Evaluation Index, SSRN (2021):

This report is a compendium of the qualitative information provided by the respondents to the survey launched for the 2020 Digital Accessibility Rights Evaluation Index (DARE Index). It provides the raw data shared by local advocates in support of their evaluations of local digital accessiblity rights as of the end of 2019 or early 2020. It includes locally available references that document their evaluations to the best of their knowledge. Readers are encouraged to suggest any additional information that may be available by emailing it to: [email protected].

Post-Pandemic Workplace Design and the Plight of Employees with Invisible Disabilities: Is Australian Labour Law and Anti-Discrimination Legislation Equipped to Address New and Emerging Workplace Inequalities?

Angelo Capuano (Central Queensland University), Post-Pandemic Workplace Design and the Plight of Employees with Invisible Disabilities: Is Australian Labour Law and Anti-Discrimination Legislation Equipped to Address New and Emerging Workplace Inequalities?, 45 U. New S. Wales L. J. (forthcoming 2022):

In 2020 the COVID-19 pandemic has re-shaped the way we work. To help contain the virus employees made a mass migration from working in offices to working remotely from home, but this mass shift to working from home is expected to have a lasting impact on workplace design even after the virus is contained. Modern and post-pandemic workplaces are expected to be increasingly “hybrid” and use shared workspaces to permit worker fluidity between the office and the home. This article argues that shared and fluid working arrangements significantly disadvantage and disproportionately affect employees with “invisible” disability in various ways, yet the outdated design of Australian labour law and anti-discrimination law is ill-equipped to deal with these new and emerging inequalities in the workplace. The assessment of the law in this article culminates with proposed drafting improvements to the Fair Work Act 2009 (Cth) and the definition of indirect discrimination in anti-discrimination legislation, but it exposes the defences to discrimination as the most problematic features of the legal framework. Whilst defences to discrimination intend to strike a balance between the interests of employers and employees, the analysis in this article shows that modern and post-pandemic workplace design significantly disrupts that balance to skew the legal tests to favour employers. Modernising the defences to discrimination to achieve greater equilibrium is a very complicated question and will be the focus of planned future empirical research. This article does, however, propose that the legislative framework can be updated by introducing proactive measures designed to enhance “person-environment fit” in workplaces. This may not only mitigate the disadvantaging effect of hybrid workplace design on employees with “invisible” disability, but also reduce reliance on the complaints-based system and help circumvent problems posed by the defences to discrimination.

'Supermarkets will Run out of Food and People’s Health will be at Risk': No-Deal Fact Checker

Victoria Hewson (Institute of Economic Affairs), 'Supermarkets will Run out of Food and People’s Health will be at Risk': No-Deal Fact Checker, Inst. Econ. Aff.’s (2019):

The UK imports 30% of its food from the EU, an amount that will be at its peak in March due to the low availability of domestic fresh produce at that time. Much of it comes through the Calais to Dover ferry route or the Eurotunnel. As it stands, if we leave the EU without a transition period – which would hold tariffs and regulatory inspections at zero – the UK will apply import duties to food imported from the EU, importers will have to complete customs declarations, and there will be new regulatory barriers when the UK and EU are in separate regulatory systems. According to the IEA’s latest Fear-Checker, Legal and technical measures are available and being put into place in the UK and member states to keep trade flowing. However, even with implementation by the UK and neighbouring member state authorities of the available facilitations, there is a serious risk that companies and the intermediaries that support international trade, like hauliers and customs brokers, will not be ready and will present with incorrect documentation, causing queues and delays. Many of the companies who have made the most recent claims already import from around the world and should have been well placed, after more than two years notice, to make necessary adjustments. Smaller businesses and intermediaries will need more support, and all affected traders need certainty from government as to what the legal parameters will be. Intensive presence of Border Force, HMRC and customs brokers at or near Channel ports should keep traffic moving, prioritising flow over compliance in the immediate term to ensure that shelves are stocked.

Parliaments during the Pandemic: A 'Dual State' Explanation of Bangladesh Jatya Sangsad

Raihan Rahman Rafid, Parliaments during the Pandemic: A 'Dual State' Explanation of Bangladesh Jatya Sangsad, 18 Bangladesh J. L. (2020):

This article seeks to theorise the Parliament of Bangladesh (Jatiya Sangsad)’s response to the COVID-19 pandemic in light of the normative traits of global parliamentary responses to the public health emergency. It is argued that while the pandemic has contributed to the executive aggrandizement in established and unstable democracies alike, it has irreversibly marginalised the legislatures in countries with “pre-existing conditions” like democratic decay, elected authoritarianism etc. This article adopts the “Dual State” thesis expounded by Csaba Győry and Nyasha Weinberg in relation to Hungary and uses it as a theoretical lens to look through the Bangladesh Parliament’s performance during the pandemic. It concludes that Bangladesh’s total neglect of parliament as an institution of relevance during the pandemic is relatable to the Hungarian or Georgian style “Dual State” approach to the crisis and this might end up normalising a perpetual marginalisation of the Jatya Sangad as an institution of accountability.

תמונת מצב: התפתחויות ושינויים בהעסקת עובדים פלסטינים בישראל Situation Report - Developments and Reform in the Employment Conditions of Palestinians in Israel

Maayan Niezna (University of Kent), Michal Tadjer, תמונת מצב: התפתחויות ושינויים בהעסקת עובדים פלסטינים בישראל Situation Report - Developments and Reform in the Employment Conditions of Palestinians in Israel, SSRN (2021):

תקציר בעברית: הדוח עוסק בשלושה נושאים מרכזיים: ראשית, הרפורמה בהעסקת עובדי בניין פלסטינים בישראל, שנכנסה לתוקף בסוף שנת 2020. שנית, השפעת מגיפת הקורונה על העובדים, שהפכו מעובדים יוממים לעובדים עונתיים, בלא תשומת לב לזכויותיהם הבסיסיות לבריאות, מגורים בטוחים וראויים וזמן פנוי. 
לבסוף, הפתחויות בהליכים משפטיים הנוגעים לזכויות כלכליות-חברתיות, כגון תשלום פנסיה ודמי מחלה

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Impacts of COVID-19 Pandemic on Environmental Law Research in Africa (Presentation Slides - A paper presented at at the Dundee Africa Research Network (DARN) Talk, 23 December 2020)

Eghosa Ekhator (Derby Law School), Impacts of COVID-19 Pandemic on Environmental Law Research in Africa (Presentation Slides - A paper presented at at the Dundee Africa Research Network (DARN) Talk, 23 December 2020), SSRN (2020):

This presentation focuses on the impact of COVID-19 on the environment and environmental law research in Africa.

The Pandemic and Food Security

Natalia Shagaida (RANEPA), Vasily Uzun (RANEPA), Denis Ternovskiy (RANEPA), The Pandemic and Food Security, 42 Russ. Econ. 2020: Trends & Outlooks 8 (2021):

Early in 2020, Russia adopted the new Food Security Doctrine, which included the entire range of amendments as compared with the previous Doctrine-2010.

Does College Education Make Us Act Healthier? Evidence from a Japanese Superstition

Yichen Shen (Waseda University), Rong FU (Waseda University), Haruko Noguchi (Waseda University), Does College Education Make Us Act Healthier? Evidence from a Japanese Superstition, SSRN (2021):

We investigated the causal effect of college education on smoking, drinking, sleeping, and cancer screening behavior in Japan. To estimate said effect, we leveraged a unique instrument in which a mismatch between Japanese superstition and school year in 1967 leading to an increase in college attainment. We found that a longer year of college education was associated with reductions in smoking and drinking and improvements in sleeping and the use of cancer screening. We also explored heterogeneity across genders and found that women drive the causal relationship between college education and health behavior in Japan.

The Resort to Military Force in the COVID-19 Health Emergency: A Justification

Živorad Rašević, The Resort to Military Force in the COVID-19 Health Emergency: A Justification, SSRN (2021):

The COVID-19 pandemic has been mobilizing the full capacities of societies worldwide to respond to unprecedented threats to national and human security. In many cases, emergency measures have involved military support to civil institutions, including law enforcement operations. This paper aims to better understand the legality and legitimacy of these military operations, using hermeneutic, comparative, and survey methodology. It is based on the assumptions that international human rights standards crucially determine moral requirements for domestic use of military force and that just war theory can be equally helpful in the decision-making on domestic military operations in such circumstances. This study assesses the justification of current military enforcement and recommends criteria for future emergencies.

Patent Protection and Access to COVID-19 Medical Products in Developing Countries

Sudip Chaudhuri, Patent Protection and Access to COVID-19 Medical Products in Developing Countries, The Impact of COVID-19 on India and the Global Order – A Multidisciplinary Approach (Mousumi Dutta, Zakir Husain, & Anup Sinha eds., 2021):

Several new vaccines that have been developed for COVID-19 are patent protected. The patentees control the production, supply and pricing of these vaccines. Most people in low-income countries have been unable to access the vaccines. India and South Africa supported by a large number of developing countries have submitted a proposal to the TRIPS Council of the WTO requesting a temporary waiver to eliminate patent and other intellectual property barriers for the development, production and supply of all COVID-19 medical products. Nine months have passed since the proposal was first made in October 2020 but still no decision could be taken because of the opposition from developed countries. The disagreements essentially revolve around four issues: whether suspension of patent rights will act as a disincentive for the development of new medical products; whether patented products can be manufactured in the absence of manufacturing capacities; whether voluntary initiatives are better than a patent waiver; and whether a waiver is necessary in view of compulsory licensing and other measures which TRIPS permits. The paper briefly reviews these issues and also provides some suggestions about what developing countries can do to make COVID-19 medical products affordable and accessible.

Of Parole and Public Emergencies: Why the Victorian Charter Override Provision Should be Repealed

Julie Debeljak (Monash University), Of Parole and Public Emergencies: Why the Victorian Charter Override Provision Should be Repealed, 45 U. New S. Wales L. J. (2022):

In times of unprecedented health emergencies, when the executive is exercising extraordinary powers in order to protect the lives, health and livelihoods of people, with limited parliamentary oversight, it is opportune to reflect on how the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) accommodates such crises. Like international and comparative instruments, rights under the Charter are able to be restricted in numerous ways: via qualification, limitation, and override (or derogation or via notwithstanding provisions).

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Safeguarding Public Values in Cooperation with Big Tech Companies: The Case of the Austrian Contact Tracing App Stopp Corona

Valerie Eveline (University of Salzburg), Safeguarding Public Values in Cooperation with Big Tech Companies: The Case of the Austrian Contact Tracing App Stopp Corona, SSRN (2021):

In April 2020, at the beginning of the COVID-19 pandemic, the Austrian Red Cross announced it was encouraging a cooperation with Google and Apple’s Exposure Notification Framework to develop the so-called Stop Corona app – a contact tracing app which would support health personnel in monitoring the spread of the virus to prevent new infections (European Commission, 2020a). The involvement of Google and Apple to support combating a public health emergency fueled controversy over addressing profit-driven private interests at the expense of public values. Concerns have been raised about the dominant position of US based big tech companies in political decision concerning public values. This research investigates how public values are safeguarded in cooperation with big tech companies in the Austrian contact tracing app Stop Corona. Contact tracing apps manifest a bigger trend in literature, signifying power dynamics of big tech companies, governments, and civil society in relation to public values. The theoretical foundation of this research form prevailing concepts from Media and Communication Studies (MCS) and Science and Technology Studies (STS) about power dynamics such as the expansion of digital platforms and infrastructures, the political economy of big tech companies, dependencies, and digital platforms and infrastructure governance. 

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Centering Disability Justice

Natalie M. Chin (CUNY), Centering Disability Justice, Syracuse L. Rev. (forthcoming):

The coronavirus pandemic surfaced existing faults in the disability rights strategy, exposing a porousness in access to the promises of the Americans with Disabilities Act (ADA) for disabled Black, Indigenous, and other People of Color. This article examines the unsustainability of disability rights through the lens of Blackness and disability to argue that the future effectiveness of disability rights advocacy demands a re-centering that incorporates principles of Disability Justice. This recalibration requires a shift from a single-issue focus on disability to an informed consciousness that confronts the role of racism/ableism on Black, Indigenous, and other People of Color in accessing disability rights protections. This singular focus reflects the lack of intersectional analysis when it comes to issues of disability. It further points to the need for advocates to more strongly align themselves with other social justice movements in developing a strategy for disability rights and to intentionally center the voices and leadership of Black, Indigenous, and other People of Color into disability rights strategy. 

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Disability Affirmative Action Requirements for the U.S. HHS and Academic Medicine Centers Under the Rehabilitation Act

Nicholas D. Lawson (Georgetown University), Disability Affirmative Action Requirements for the U.S. HHS and Academic Medicine Centers Under the Rehabilitation Act, Hastings Ctr. Rep. (2021):

Medical professionals exert enormous influence over the lives of persons with disabilities by providing medical care and by generating medical research and medical information about them that forms the basis for policies and practices that affect their everyday lives. Yet persons with disabilities remain substantially underrepresented within the U.S. Department of Health and Human Services (U.S. HHS) workforce and in the medical profession more generally. These institutions also appear to be noncompliant with their obligations to engage in disability affirmative action under Sections 501 and 503 of the Rehabilitation Act. This Essay provides an introduction to some of these disability affirmative action requirements and contrasts these obligations with medical leaders’ “well-being” and “burnout” medical research conducted on employees, and further enabled through the “Dr. Lorna Breen Health Care Provider Protection Act.” These behaviors, it is argued, are fundamentally exploitative, socially irresponsible, and likely to result in defective health policies and medical products. The Essay calls for a wholesale change in approach to persons with disabilities within the health and medical professions.

Deficiency in Medical Services under Consumer Protection Law and Equivalency of Medical Negligence under the Law of Torts

Avinash Singh (Symbiosis International University, Afsana Khan (Symbiosis Law School), Deficiency in Medical Services under Consumer Protection Law and Equivalency of Medical Negligence under the Law of Torts, 9 Int. J. Legal Rsch. 311 (2021):

The importance of the medical field has been increasing rapidly with the escalation in population and the emergence of a new variety of diseases. Doctors and medical practitioners play an essential role in saving the lives of people and curing their illnesses. A doctor in a maternity hospital or mortuary certifies the beginning and end of a person's life and treats his patients irrespective of their caste, creed, religion, gender, race, age, economic status, etc., no matter what the ailment is. They would always give a helping hand to whoever is suffering and is in need therefore known as a noble profession. 

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Basic Principles of Islamic Perspectives in Organ Donation by a Surgeon's Approach

H Omer Tontus, (Istanbul Technical University), Basic Principles of Islamic Perspectives in Organ Donation by a Surgeon's Approach, SSRN (2020):

The debate on organ donation in Islam is changing day by day towards an attitude in favor of organ donation. There is no clear provision on organ and tissue transplantation in the Qur'an and the hadiths. However, in the Islamic religion, there are general provisions and rules that have been issued in the light of the Qur'an and Sunnah.

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Regulating Health Care: Perspectives From Government Failure During the COVID-19 Pandemic

David A. Hyman (Georgetown University), Charles Silver (University of Texas), Regulating Health Care: Perspectives From Government Failure During the COVID-19 Pandemic, SSRN (2021):

Health care is beset with an array of market failures (e.g., informational asymmetries, externalities, monopolization, and public goods). In theory, government can intervene to fix these market failures, allowing scarce resources to be devoted to their highest use at the lowest possible cost with the fewest possible distortions -- thereby promoting life, liberty, and the pursuit of happiness. That theory has launched thousands of laws, tens of thousands of regulations, and hundreds of thousands of pages of law review articles -- all premised on the assumption that markets are flawed but government is not. Of course, it takes the willful suspension of disbelief to accept the premise that governmental failures do not occur. Even under the best of circumstances, government failures do occur. We focus in this article on the failures of public health experts/professionals in the U.S. Department of Health & Human Services – particularly the Centers for Disease Control and Prevention (CDC) in responding to COVID-19. If anyone had the technical expertise and resources to do a good job responding to COVID-19, it was the CDC. If this agency was not up to the task of responding with a minimum amount of competence and diligence to COVID-19, then the case for expecting government to correct market failures without making things worse becomes far more tenuous.

American Constitution Society for Law and Policy: Call for Papers Deadline Extended to January 1, 2022

The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade?

I. Glenn Cohen (Harvard Law School), Eli Y Adashi (Brown University), Lawrence O. Gostin (Georgetown University), The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade?, J. Am. Med. Ass’n Health F. (2021):

Thirteen states have enacted so-called “fetal heartbeat” laws banning abortions once embryotic cardiac activity can be detected. Courts have enjoined their enforcement as unconstitutional. However, on September 1, 2021, the Supreme Court declined to block a Texas fetal heartbeat law, which virtually eliminates access to abortion services. Texas Governor Greg Abbott signed SB8 into law on May 19th, with an effective date of September 1st. The law essentially prohibits abortion after 6 weeks of gestational age, before most women know they are pregnant.

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