HealthLawProf Blog

ADA to Ph.D.? The Americans with Disabilities Act and Post-Secondary Educational Attainment

Nicholas Reinarts (Middle Tennessee State University), Vitor Melo (Clemson University), ADA to Ph.D.? The Americans with Disabilities Act and Post-Secondary Educational Attainment (2023):

The Americans with Disabilities Act (ADA) of 1990 requires employers and universities to provide accommodations to employees and students with disabilities. Previous research on the ADA has focused primarily on labor market outcomes. Yet, little is known about how the ADA affected the educational attainment of people with disabilities. This paper fills this gap by examining the effect of the ADA on the decision-making of disabled Americans regarding post-secondary education. Using data from the CPS, we implement difference-in-differences and synthetic difference-in-differences empirical approaches to estimate this causal effect. We find that the ADA substantially negatively impacted post-secondary educational attainment, which is the opposite of its intended objective.

'The Timeless Explosion of Fantasy's Dream': How State Courts Have Ignored the Supreme Court’s Decision in Panetti v. Quarterman

Michael L. Perlin (New York Law School), Talia Roitberg Harmon (Niagara University), Maren Geiger (Niagara University), 'The Timeless Explosion of Fantasy's Dream': How State Courts Have Ignored the Supreme Court’s Decision in Panetti v. Quarterman (2023):

Multiple states have enacted statutes to govern procedures when a state seeks to execute a person who may be incompetent to understand why s/he is being so punished, an area of the law that has always been riddled with confusion. The Supreme Court, in Panetti v. Quarterman, 551 U.S. 930 (2007), sought to clarify matters, ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.” Id. at 968. However, the first empirical studies of how Panetti has been interpreted in federal courts painted a dismal picture. Only a handful of defendants have ever been successful in federal courts in seeking to enforce the Panetti ruling, see Michael L. Perlin & Talia R. Harmon, “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman (with Prof. Talia Harmon,) 60 U. LOUISVILLE L. REV. 557 (2022), and two of the authors of this abstract have characterized the relief ostensibly offered by that case as nothing more than an “illusion” or a “mirage” in a federal context, see Michael L. Perlin, Talia R. Harmon & Haleigh Kubiniec, “The World of Illusion Is at My Door”: Why Panetti v. Quarterman is a Legal Mirage, 59 CRIM. L. BULL. -- (2023) (in press). The issues of believability of experts, allegations of malingering, and “synthetic competency” dominated these decisions.

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Access to Voluntary Assisted Dying in Australia Requires Fair Remuneration for Medical Practitioners

Casey Haining (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Simon Towler (Independent), Ben White (Queensland University of Technology), Access to Voluntary Assisted Dying in Australia Requires Fair Remuneration for Medical Practitioners, M. J. Australia (2022):

Medical practitioners are poorly compensated for their time and services in supporting patients through the voluntary assisted dying process.

Canadian Medical Association: Medical Assistance in Dying (2017) Project commentary

Sean T. Murphy (Independent), Canadian Medical Association: Medical Assistance in Dying (2017) Project commentary (2022):

The first statement by the Canadian Medical Association (CMA) addressing the subject of physician freedom of conscience at a foundational level was a 2016 submission to the College of Physicians and Surgeons of Ontario in response to its demand that objecting physicians facilitate euthanasia and assisted suicide by an “effective referral” (i.e., "a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency." The principles enunciated in the submission to the CPSO were developed and applied the following year in Medical Assistance in Dying, the Canadian term for practitioner administered euthanasia and assisted suicide.

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Tort Defences and Negligent Medical Advice: Daniel Watts v North Bristol NHS Trust [2022] EWHC 2048 (QB)

Kian Peng Soh (Singapore Management University), Tort Defences and Negligent Medical Advice: Daniel Watts v North Bristol NHS Trust [2022] EWHC 2048 (QB), 39 J. Professional Negl. 1 (Forthcoming):

A short note exploring the use of tort law defences in medical negligence suits.

Just for Kids? How the Youth Decarceration Discourse Endorses Adult Incarceration

Hedi Viterbo (Queen Mary University of London), Just for Kids? How the Youth Decarceration Discourse Endorses Adult Incarceration, Criminology & Crim. Just. (Forthcoming):

This article lays bare three interrelated and previously overlooked pitfalls of calls to reduce or abolish youth incarceration. First, despite their anti-carceral semblance, such calls persistently portray the overwhelming majority of people in trouble with the law—namely, adults—as incorrigible, blameworthy, and therefore as deserving of punishment and imprisonment. Second, this ageist rhetoric often disregards adult vulnerability. Thus, despite adults’ greater medical vulnerability to the COVID-19 disease, it is youth whom some organizations singled out or even called to prioritize for release from prisons during the coronavirus pandemic. Third, at the heart of the youth decarceration discourse are essentialist assumptions about youth, which rest on questionable science and downplay the socially constructed dimension of age differences. All three pitfalls epitomize a dual fault of the child rights discourse more broadly, as evidenced in other contexts: repeatedly lending legitimacy to punitiveness and apathy toward adults while also working to the detriment of children. Doubtless, there are compelling arguments against penal confinement, but it is only decarceration across the age spectrum that can truly challenge carceral thinking—and ageism.

Keeping Negligence Simple

Donal Nolan (University of Oxford), James Plunkett (Independent), Keeping Negligence Simple, L.Q. Rev. pp. 175-181 (2022):

In this case note, we consider the UK Supreme Court decision in Meadows v Khan [2021] UKSC 21, [2022] AC 852, which concerned the scope of the duty of care that a GP owed to a patient who was a carrier of the haemophilia gene. Although we agree with the decision in the case, we argue that the approach of the majority Justices was unnecessarily complex, and that the issue should have been dealt with as a question of remoteness rather than duty. We also subject the majority’s six-part ‘roadmap’ for negligence cases to critical review, and conclude that it is likely to obfuscate rather than illuminate.

Canadian Medical Association and Referral for Morally Contested Procedures

Sean T. Murphy (Independent), Canadian Medical Association and Referral for Morally Contested Procedures (2022):

The Canadian Medical Association (CMA) has variously expressed support for physician freedom of conscience in codes of ethics, resolutions at successive General Councils and in policies concerning specific procedures.

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School-Based Healthcare and Absenteeism: Evidence from Telemedicine

Joanna Wuest (Mount Holyoke College), Briana Last (Stony Brook University), School-Based Healthcare and Absenteeism: Evidence from Telemedicine, J. L. Med. & Ethics (Forthcoming):

Industry-funded religious liberty litigation groups have sought to undermine healthcare policy and law while simultaneously attacking the rights of sexual and gender minorities. Whereas past scholarship has tracked religiously affiliated healthcare providers’ growing political power and attendant transformations to legal doctrine, our account emphasizes the political donors and visionaries who have leveraged religious providers and the U.S. healthcare system’s delegated structure to transform social policy and bureaucratic agencies more generally. We collect and analyze industry-funded litigation briefs, track statutory and constitutional developments in federal courts, and employ a historical institutionalist analysis of the U.S. healthcare system. Case studies include: 1) the Affordable Care Act’s implementation; 2) the Department of Health and Human Services (HHS) interpretations of its rules and relevant congressional statutes; 3) the professional civil service; and 4) state and federal COVID-19 public health policies. We find that industry-funded religious liberty legal organizations have successfully limited the rights of sexual and gender minorities and access to reproductive healthcare while also curtailing the administrative authority of agencies including HHS. Our case studies highlight the threat that industry-funded religious liberty legal organizations pose for effective healthcare regulation, reproductive healthcare access, and civil rights enforcement for sexual and gender minorities.

Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State

D. Mark Anderson (Montana State University), Yang Liang (San Diego State University), Joseph Sabia (San Diego State University), Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State, IZA Discussion Paper No. 15843 (2023):

Using data from the Fatality Analysis Reporting System for the period 1983-1997, Cohen and Einav (Review of Economics and Statistics 2003; 85(4): 828–843) found that mandatory seatbelt laws were associated with a 4 to 6 percent reduction in traffic fatalities among motor vehicle occupants. After successfully replicating their two-way fixed effects estimates, we (1) add 22 years of data (1998-2019) to capture additional seatbelt policy variation and observe a longer post-treatment period, (2) employ the interaction-weighted estimator proposed by Sun and Abraham (2021) to address potential bias due to heterogeneous and dynamic treatment effects, and (3) estimate event-study models to investigate pre-treatment trends and explore lagged post-treatment effects. Consistent with Cohen and Einav (2003), our updated estimates show that primary seatbelt laws are associated with a 5 to 9 percent reduction in fatalities among motor vehicle occupants. Estimated effects of secondary seatbelt laws are smaller in magnitude and sensitive to model choice.

Mandatory Seatbelt Laws and Traffic Fatalities: A Reassessment

D. Mark Anderson (Montana State University), Yang Liang (San Diego State University), Joseph Sabia (San Diego State University), Mandatory Seatbelt Laws and Traffic Fatalities: A Reassessment, IZA Discussion Paper No. 15843 (2023):

Using data from the Fatality Analysis Reporting System for the period 1983-1997, Cohen and Einav (Review of Economics and Statistics 2003; 85(4): 828–843) found that mandatory seatbelt laws were associated with a 4 to 6 percent reduction in traffic fatalities among motor vehicle occupants. After successfully replicating their two-way fixed effects estimates, we (1) add 22 years of data (1998-2019) to capture additional seatbelt policy variation and observe a longer post-treatment period, (2) employ the interaction-weighted estimator proposed by Sun and Abraham (2021) to address potential bias due to heterogeneous and dynamic treatment effects, and (3) estimate event-study models to investigate pre-treatment trends and explore lagged post-treatment effects. Consistent with Cohen and Einav (2003), our updated estimates show that primary seatbelt laws are associated with a 5 to 9 percent reduction in fatalities among motor vehicle occupants. Estimated effects of secondary seatbelt laws are smaller in magnitude and sensitive to model choice.

Vaccine Contracts in the Context of Pandemics and Epidemics

Ana Santos Rutschman (Villanova University), Vaccine Contracts in the Context of Pandemics and Epidemics, N.Y.U. J. Int'l L. & Pol. (Forthcoming):

This symposium essay explores the architecture of vaccine contracts, as well as the allocation of resulting vaccines in preparation for, and in response to, pandemics and large-scale epidemics. Drawing on contracts predominantly related to COVID-19 vaccines collected through publicly available databases, the work begins by providing an overview between the relationships between the parties entering into these agreements; the bargaining processes adopted and their timeline relative to market demand for vaccines; and the substantive obligations imposed by these contracts.

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China’s Medical Chaos Comes Down to Its Confusing Medical Education Patterns

Dan Shan (Columbia University), China’s Medical Chaos Comes Down to Its Confusing Medical Education Patterns (2022):

Compared to other countries, China's medical education has the most confusing pattern in the world. Unlike the consistent training patterns in most Western countries (e.g., Europe and North America), where all medical students graduate with the same medical degree and a similar level of clinical competence to be able to practice medicine, either with an MBBS or MD or equivalent; in China, there are numerous distinct medical training pathways, ranging from 3 to 8 years, allowing medical students to obtain an entry-level medical degree at different levels of graduation.

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The Impact of Legal Abortion on Maternal Mortality

Sherajum Farin (Georgia State University), Lauren Hoehn-Velasco (Georgia State University), Michael Pesko (Georgia State University), The Impact of Legal Abortion on Maternal Mortality, IZA Discussion Paper 15657 (2023):

Legal abortion has recently been suggested as an essential healthcare service. In this study, we consider whether abortion legalization over 1969-1973 improved women's health, measured by maternal mortality. Our event-study results indicate that legal abortion substantially lowered non-white maternal mortality by 30-40%, with 113 non-white maternal deaths averted nationally in the first year abortion became legal. We also find that early state-level legalizations were crucial, and more influential than the Roe v. Wade decision itself.

Older Persons' Right to Adequate Housing

Alan S. Gutterman (Independent), Older Persons' Right to Adequate Housing (2022):

The right to adequate housing was first recognized in Article 25(1) of the Universal Declaration of Human Rights as a component of the right to an “adequate standard of living”, and has since been acknowledged and described in a number of international human rights instruments including Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, which calls on States to “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. In its General Comment 4 on the right to adequate housing released in 1991, the Committee on Economic, Social and Cultural Rights (“CESCR”) declared that “[t]he right to adequate housing applies to everyone … regardless of age, economic status, group or other affiliation or status and other such factors … [and] ... enjoyment of this right must … not be subject to any form of discrimination”.

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Accessible Virtual Health Care

Jessica L. Roberts (University of Houston), Tiffany Penner (University of Houston), Accessible Virtual Health Care (2023):

Implemented properly, virtual health care—like online appointments, patient portals, and remote patient monitoring—has tremendous potential. These technologies can reduce costs and improve efficiency. They can also eliminate access barriers, streamline communication, and improve the management of chronic conditions. People with disabilities might then seem like an obvious population to benefit from these advances. As compared to people without disabilities, they have less access to regular care, encounter more barriers, and experience worse health outcomes. The recent move toward virtual health care offered an opportunity to address these disparities. Unfortunately, much of the current technology is inaccessible to patients with disabilities. This Article considers why. First, a robust market failed to develop around accessible virtual health technologies due to high perceived costs and low perceived demand. Second, existing antidiscrimination laws have not meaningfully improved digital accessibility or health care access. We, therefore, advocate an approach focused on setting standards, changing best practices, creating incentives, and investing in enforcement.

Forming a 'Brain Print:' Using Cognitive Neuroscience and Brain Imaging as an Objective Measure of Criminal Insanity

Christos Strubakos (University of Detroit Mercy), Forming a 'Brain Print:' Using Cognitive Neuroscience and Brain Imaging as an Objective Measure of Criminal Insanity, 10 Lincoln Memorial U. L. Rev. 1 (2022):

Criminal insanity has been popularized by fiction. Yet, despite its popularity in the virtual world, it is rarely used in real life. The reasons for this are many, but chief among them is that mental disorders that may inhibit a defendant's ability to form reasonable cognitive representations of reality often do not impact his ability to form the requisite mental state that is an element of the crime. Thus, the legal definition of criminal insanity refers to a mental defect that affects a defendant's ability to appreciate her actions at the time of the crime or to understand that her actions are wrong. Further complicating matters is how these internal states can be proven in a court beyond a reasonable doubt, especially since mental health professionals disagree about which psychometric measure to apply in evaluating insanity. This paper seeks to shed new light on the mental categories in criminal law using modern cognitive neuroscience and neurophysiology. I argue that mathematical modeling and functional neuroimaging of brain networks in normal and diseased minds can help form a brain print such that disruptions in the network lead to objectively measurable cognitive dysfunctions in the kinds of mental disorders that arise in criminal insanity.

The HIPAA Privacy Rule at Age 25: Privacy for Equitable AI

Barbara J. Evans (University of Florida), The HIPAA Privacy Rule at Age 25: Privacy for Equitable AI, Fla. St. U. L. Rev. (Forthcoming):

AI/ML clinical decision support (CDS) tools are a large and important category of medical software at the core of the AI-driven transformation of traditional health care delivery. CDS tools offer recommendations to health care professionals on how to diagnose and treat a patient’s disease. A growing body of scientific literature finds that AI/ML CDS tools exhibit biases that cause them perform more reliably for white male patients than for women, transgender patients, people of color, and persons experiencing economic disadvantages. A celebrated achievement of 21st-century medicine – AI/ML CDS software – threatens to become a new source of invidious discrimination in health care. The problem of bias is widely attributed – and with a large measure of truth – to structural and systemic inequities in U.S. health care. That may not be the entire story, though, and other contributing factors are at work. In particular, the ethical and legal norms with which a society governs access to data for use in training, validating, and regulating AI/ML CDS tools influence how reliable – and how equitably reliable – its recommendations will be.

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Managing Medical Device Liability through Innovation: A Strategic Approach

Alberto Galasso (University of Toronto), Hong Luo (Harvard University), Managing Medical Device Liability through Innovation: A Strategic Approach (2022):

In this article, we discuss several aspects of the relationships among product liability risk, safety, and innovation strategies of medical device companies.

Compelling Trade Secret Transfers

David S. Levine (Elon University), Joshua D. Sarnoff (DePaul University), Compelling Trade Secret Transfers, Hastings L.J. (Forthcoming):

The unprecedented COVID-19 virus has brought to the forefront many challenges associated with exclusive rights in information, data, and know-how, all of which may constitute protected trade secrets. While patents have received more attention, trade secret information has limited the ability to perform research, develop, test, gain regulatory approval for, manufacture, and distribute globally and at sufficient scale and affordable prices the needed vaccines, therapeutics, diagnostics, medical devices, and personal protective equipment. Voluntary licensing efforts have proven inadequate to supply pandemic needs. Thus, compelling the transfer or licensing of trade secrets is needed to properly address COVID-19, but more importantly, to address future pandemics and other serious global problems such as climate change.

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