Friday, February 9, 2024
With All Due Deference: A Summary of Administrative Deference as Applied to Social Decisions in Federal Court
Nicholas Ohanesian (Michigan State University), With All Due Deference: A Summary of Administrative Deference as Applied to Social Decisions in Federal Court, Soc. Sec. Law. Newsl., State Bar of Mich. (2023):
The purpose of this article is to introduce the various standards that federal courts apply when reviewing Social Security disability determinations.
Thursday, February 8, 2024
The recent sea change in the composition of the federal judiciary has sparked robust debate on topics such as abortion and gun rights. But little attention has been paid to how these judges have set back civil rights for a large, but often ignored, class of individuals—people with physical and mental health disabilities. President Donald J. Trump’s judicial appointees have routinely sided with employers, businesses, and states to oppose enforcement of disability rights. They have ignored the letter and purpose of the law to enable the execution of individuals with intellectual disabilities, undermine regulatory enforcement, elevate religious and personal liberties over disability-rights claims, restrict the ability of public health officials to protect those most at risk from a deadly pandemic, and limit damages for disability-based discrimination.
Gregory H. Shill (University of Iowa), Transportation Policy as Hindrance and Handmaiden of the Hundred-Year Life(Law and the 100-Year Life, Anne Alstott & Abbe Gluds eds.) (forthcoming 2024):
There are two barriers to realizing the promise of the hundred-year life in the United States. The first is that few get to live it: unlike peers in other high-income countries, the life expectancy of Americans is short. Paradoxically, however, boosting American longevity would aggravate a second problem: on important dimensions, Americans enjoy less independence in old age than their peers. These problems have something perhaps unexpected in common: a built environment that requires driving as the price of first-class citizenship. That bargain, a legacy of twentieth-century transportation and land use policy, first lops years off of life expectancy by claiming lives at disproportionately young ages and then saps independence and quality of life among the small share of Americans who are fortunate to reach very old age.
Monday, February 5, 2024
Case Western Reserve University’s Law-Medicine Center Presents: Private Equity and the Corporatization of Health Care
Case Western Reserve University’s Law-Medicine Center Presents: Private Equity and the Corporatization of Health Care; 12:00PM – 1:00PM on Thursday, February 8th, 2024.
Private equity investment in physician services has become a driving force in the financialization of health care. While private equity investors seek quick revenue generation from health services organizations, they challenge the professional and ethical norms that distinguish medical providers from profit-seeking businesses. Their practices threaten to increase costs, lower health care quality and contribute to physician burnout and moral distress. An example of how private equity investors exploit market dysfunctions or regulatory loopholes is the practice known as “surprise medical billing.” This occurs when a patient receives care at an in-network facility from an unexpectedly out-of-network provider. The resulting medical bills force insurers to pay more and expose innocent patients to sometimes crippling financial debt. The federal No Surprises Act outlawed some forms of this phenomenon but did not completely eliminate the problem.
Erin Fuse Brown’s lecture will discuss the trend of private equity investment in physician services and the legal tools available under federal and state law to address the threats presented by health care financialization. She will also analyze how loopholes and market distortions should be addressed through new legislative and regulatory interventions.
Erin C. Fuse Brown
Catherine C. Henson Professor of Law & Director of the Center for Law, Health & Society
Georgia State University College of Law
Saturday, February 3, 2024
This tutorial provides an introduction into the evolving topic of privacy preserving machine learning. It discusses how to run models on data from potentially multiple data providers without any data provider having to share any non-encrypted data with any other party. In particular, for use cases requiring large amounts of sensitive personal data, and in the context of strict regulations like GDPR in the European Union, this topic is highly relevant. We introduce the concept of (multiparty) homomorphic encryption and demonstrate the approach on two synthetic datasets of personal health information. Furthermore, this tutorial also provides an introduction into the most common (survival) models to predict health outcomes.
Patenting Strategies by Pharmaceutical Companies: A Lawful Use of the Patent System or an Abusive Conduct?
Olga Gurgula (Brunel University London), Patenting Strategies by Pharmaceutical Companies: A Lawful Use of the Patent System or an Abusive Conduct? (A Research Agenda for Patent Law, Bonadio and Shemtov eds.) (2023):
To delay generic competition, pharmaceutical companies have been increasingly relying on the patent system. Some of their patent-related practices, such as pay-for-delay agreements, have attracted significant attention of competition authorities in several jurisdictions. However, other practices remain outside of competition authorities’ investigative activities in most jurisdictions, including in Europe. This chapter will discuss two strategies that are employed by pharmaceutical companies to prevent generic competition, namely: (a) strategic accumulation of patents and (b) product hopping. These strategies have the capacity to produce negative effects on the market by delaying market entry of cheaper generics and resulting in a substantial additional cost to the public. The main aim of this chapter is, therefore, to attract attention of policy makers world-wide to these practices explaining their essence, anticompetitive nature and effects.
Friday, February 2, 2024
The Case for Universal Prenatal Care to Combat the Birth Outcome Crisis in Undocumented Latino Communities
Millions of undocumented Latino immigrants experience inadequate healthcare due to ineligibility for federally-sponsored health insurance such as Medicaid. They are also less likely to seek care due to fear of deportation or other repercussions and because of the language barrier. Through original interviews and examination of federal and state legislation, peer-reviewed journals, and news articles, this paper argues for state-allocated universal prenatal care as a means to prevent poor birth outcomes, including preterm birth and low birth weight, among undocumented Latina mothers. The paper analyzes attempted solutions, including free and low-cost clinics and information campaigns conducted via Spanish-language “promotoras,” and discusses how these attempts fall short. Subsequently, the paper compares health outcomes in states that have adopted universal health care for pregnant women, infants and children, or both, to outcomes in more restrictive states, determining that preventative care initiatives related to both prenatal care and other areas of health have proven to save lives and money. Therefore, if prenatal care is made accessible to undocumented pregnant women, states will both reap the economic benefits, including fewer postnatal ER admittances and hospitalizations, and see better birth outcomes. Thus, while low-cost medical clinics and information programs help increase prenatal care among undocumented pregnant Latinas in the short term, the long-term cost-effective solution for improved birth outcomes is universal prenatal care.
Joanna N. Erdman (Dalhousie University), Mariana Prandini Assis (The New School), Gender Equality in Health Care: Reenvisioning CEDAW General Recommendation 24 (Frontiers of Gender Equality: Transnational Legal Perspectives, Rebecca J. Cook ed.) (2023):
Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) carries the specific promise to eliminate all forms of discrimination against women in the field of health care. Written in 1999, General Recommendation 24 (GR 24) interprets this article within a particular gender equality paradigm that over time has been subject to critique and that today invites a rewriting. We pursue this project by engaging with the sex and gender essentialism of GR 24 to rework the category of “women” under Article 12, and to thereby rewrite what it means to “eliminate discrimination against women” in health care “on a basis of equality of men and women.” We then turn to the neglect of the political economy of health and its institutions in GR 24 to rewrite what it means to eliminate discrimination against women “in the field of health care” to ensure “access to health care services.” In this interpretation of Article 12, we reimagine sex and gender from the experiences of those who live them and seek to recreate the institutional structures of state and economy from the lives of those who experience them. We thus pivot away from a traditional alliance between the right to health and the fields of medicine and public health, which has tended to isolate health from other public goods in economic and social life and frame the field of health care as a site for the building of gender-just societies. In this radical rewriting of GR 24, we reimagine the political form and function of general recommendations in international human rights law, and in that political vision, we propose text for a future general recommendation on gender equality in health care under Article 12 of CEDAW.
Thursday, February 1, 2024
Naomi Cahn (University of Virginia), Sonia M. Suter (The George Washington University), Developing a Reproductive Justice Approach to Regulating Formal and Informal Sperm Donation (Va. Pub. L. and Legal Theory Rsch. Paper No. 2023-78) (2023):
This essay explores the regulation of sperm donation from a reproductive justice perspective. It compares formal sperm donation, which involves fertility clinics and sperm banks, and informal sperm donation, which arises through social media, classified ads, conversations, etc. While there are reasons some donors and recipients may prefer the informal market, the piece notes the risks associated with the less regulated market. Finally, it examines and responds to concerns about regulating sperm donation, including worries about limiting sperm supply, reproductive autonomy, exceptionalizing assisted reproductive technologies, treating genetic connections as privileged, and majoritarian values hurting marginalized groups. Ultimately, it concludes that concerns about regulating sperm donation should be taken seriously, but rather than using them to prevent regulation, it argues that these objections should guide regulations to promote reproductive justice and equity for many groups, including parents, LGBTQ communities, people of color and donor conceived people.
Against Bankruptcy: Public Litigation Values versus the Endless Quest for Global Peace in Mass Litigation
Abbe R. Gluck (Yale Law School), Elizabeth Chamblee Burch (University of Georgia), Adam S. Zimmerman (USC Gould), Against Bankruptcy: Public Litigation Values versus the Endless Quest for Global Peace in Mass Litigation, 131 Yale L.J. F. (forthcoming 2024):
Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?
Wednesday, January 31, 2024
Centre for Health Equity, Law and Policy (Indian Law Society), The Judiciary – Executive Interface in Areas of Health in India (2023):
This paper traverses the actions of Indian constitutional courts in the recognition of a fundamental right to health through a review of jurisprudence, the interface of these courts with the legal landscape that informs federal arrangements of central and state governments in relation to health, and court interventions in relation to the private healthcare sector to ensure that it respects, protects and fulfills the right to health.
In 2022, C-HELP was commissioned by the Governance Workstream of the Lancet Citizens’ Commission on Reimagining India's Health System to conduct research into the critical intersections of rights, health, and law.
This research is being updated, edited, and published by C-HELP in a series of working papers on the Right to Health and Universal Health Coverage in India.
Stella Maris Isabel Margetic (Center for Mediation and Alternative Methods of Approach and Conflict Resolution of the Judiciary of the Autonomous City of Buenos Aires), Maria Martha Fernandez (Center for Mediation and Alternative Methods of Approach and Conflict Resolution of the Judiciary of the Autonomous City of Buenos Aires), Leticia Gilda Peralta (Center for Mediation and Alternative Methods of Approach and Conflict Resolution of the Judiciary of the Autonomous City of Buenos Aires), How Therapeutic can be Online Criminal Mediation (2022):
The authors present the results of an anonymous, voluntary and virtual survey carried out on the participants of the online mediation processes within the framework of COVID-19 and carried out by professionals from the Mediation Center of the Judicial Power of the City of Buenos Aires, of which they are part of. Due to the emergence of the new context of the global pandemic, with the confinement restrictions and in the face of uncertainty and vulnerability, in a context of general paralysis, from the Mediation Centre they felt the professional ethical imperative to respond to the parties; in order to do this, the first action protocol of the Judicial Power for online mediation hearings was implemented.
Tuesday, January 30, 2024
Daniel Dench (Georgia Institute of Technology), Mayra Pineda-Torres (Georgia Institute of Technology), Caitlin Knowles Myers (Middlebury College), The Effects of the Dobbs Decision on Fertility (IZA Discussion Paper No. 16608) (2023):
The U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization sparked the most profound transformation of the landscape of abortion access in 50 years. We provide the first estimates of the effects of this decision on fertility using a pre-registered synthetic difference-in-differences design applied to newly released provisional natality data for the first half of 2023. The results indicate that states with abortion bans experienced an average increase in births of 2.3 percent relative to states where abortion was not restricted.
Mason Marks (Harvard Law School), I. Glenn Cohen (Harvard Law School), Jonathan Perez-Reyzin (Yale Law School), David Angelatos (New York City Law Department), Microdosing Psychedelics Under Local, State, and Federal Law, 103 B.U. L. Rev. (2023):
Microdosing psychedelic substances (“microdosing”) is a growing trend that has gained significant media and scientific attention. The practice typically involves consuming low doses of psychedelics, such as psilocybin or lysergic acid diethylamide (“LSD”), two or three times per week, over the course of weeks or months. Many claim that microdosing improves attention, creativity, or mood. Some say it reduces pain as well as symptoms of anxiety, depression, and migraine or cluster headaches. Others fear it has not been proven safe or effective by randomized controlled trials. Nevertheless, the microdosing trend is growing against the backdrop of a broader psychedelic renaissance characterized by increasing interest in researching, legalizing, consuming, and commercializing psychedelics. This Article is the first to address the legal status of microdosing under local, state, and federal law. It analyzes the national trend toward psychedelic legal reform and how it affects the legal status of people who microdose.
Monday, January 29, 2024
Every state except Alaska has laws that criminalize the possession and/or sale of paraphernalia for the consumption of illicit drugs. State‐level drug paraphernalia laws prevent people who use those drugs from accessing the means to reduce the risk of infection or overdose. This makes nonmedical drug use even more dangerous because the laws often prevent access to clean needles and syringes along with products to test drugs for deadly contaminants.
Madhavi Sunder (Georgetown University), Haochen Sun (The University of Hong Kong), Intellectual Property and “The Lost Year” of COVID-19 Deaths, Harv. Int’l L.J. (2023):
Protecting intellectual property (IP) is a question of life and death. COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021. However, most of the benefits of this life-saving technology went to high- and upper-middle-income countries. Despite 10 billion vaccines being produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to an insufficient supply of vaccines and inequitable access during the critical first year of vaccine rollout, most notably in low-income countries that lacked the ability to buy or manufacture vaccines to save their populations. IP is implicated in the choked supply of COVID-19 vaccines in low-income countries, particularly during the crucial first year of the vaccines’ availability in 2021.
Thursday, January 25, 2024
Jeffrey A. Cooper (Quinnipiac University), An Unclear Burden: Proving Undue Influence in Connecticut, 37 Quinnipiac Prob. L.J. (2023):
In will contests, one party often will make an allegation of “undue influence,” suggesting that another party procured an unnatural share of the decedent’s estate by overcoming the decedent’s free will. As this paper explores, Connecticut law is not clear on the question of what burden of proof is required to prove a claim of undue influence. While the Appellate Court’s 2021 ruling in Holloway v. Carvalho suggested that the burden of proof in all undue influence cases is that of clear and convincing evidence, a closer review of the Court’s opinion shows that conclusion to have been built upon a rather thin jurisprudential foundation. Rather, over a century of Connecticut case law has left this crucial question unresolved.
Wednesday, January 24, 2024
Arseny Shevelev, Georgy Shevelev, Who Owns Our Dead Bodies: A Critical Socio-Legal Study, Tex. Int’l L.J. (2023):
We are living in a challenging era, when people are being deprived of the rights to their bodies that they have won through centuries of vehement struggle for liberty. This unfortunate truth is valid not only with regard to rights to the body while alive, but also with regard to the right to dispose of one's body in the event of death, and the root of this is the failure of the legal system to reflect prevailing social values. This Article will analyze the various options of selecting persons authorized to dispose of a corpse through the prism of the social sciences. It will scrutinize the basics underlying the state's choice in favor of either the deceased's relatives or non-blood loved ones and demonstrate the depth of the disregard for the deceased's will in determining the posthumous destiny of their own body. Ultimately, this Article will propose a model for a radical revision of a person's right to dispose of their own dead body, the heart of which will be the concept of the abstract subject of ownership. This new concept will, for the first time, justify a logically consistent mechanism explaining how a person's right to their body is capable of surviving the death of its owner and continuing to operate despite the absence of a concrete owner.
Moral Framing and Affirmative Outreach as Drivers of Health Insurance Enrollment in Medicaid and a State Exchange: A Randomized Field Experiment
Wendy Netter Epstein (DePaul University), Christopher T. Robertson (Boston University), David Yokum (Brown University), Hansoo Ko (New York University), et al., Moral Framing and Affirmative Outreach as Drivers of Health Insurance Enrollment in Medicaid and a State Exchange: A Randomized Field Experiment (2023):
Legal efforts to expand health insurance coverage have relied on traditional economic theory. Despite expanded subsidies and some state mandates, nearly 30 million Americans are uninsured, including many who could afford it. Where economic self-interest has not fostered enrollment, we test whether moral framing around community or responsibility could be more effective.
We present a pre-registered field experiment with a state government (Maryland) dataset of uninsured residents (N=16,477). We randomized to four conditions: (a) no-contact control, (b) affordability messaging (status quo), (c) responsibility messaging, or (d) community messaging, and found responsibility and community messages most effective (an 18.5% change).
Tuesday, January 23, 2024
Akshat Agarwal (Yale University), Towards a ‘Good Death’: Uncovering the Confusion in End-Of-Life-Care Law in India, 16 NUJS L. Rev. (2023):
Legal confusion in end-of-life care law has remained a key barrier before dying with dignity in India. The history of legal developments on end-of-life care, however, is not linear, and has been marked by continuities, shifts, and a lack of clarity. This article excavates the history of Indian end-of-life care law to demonstrate how and why confusion has plagued Indian law. It argues that the Supreme Court’s guidelines in its landmark decision in Common Cause v. Union of India were practically unimplementable since they conflated “passive euthanasia” with the “withholding and withdrawing of life sustaining treatment,” disregarded patient autonomy and did not account for a surrogate decisionmaking framework for patients who lack decision-making capacity. Recently, the Supreme Court modified the Common Cause guidelines to address some of their practical issues, yet these substantive concerns remain relevant for any future legislative intervention on end-of-life care.