HealthLawProf Blog

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

Friday, October 15, 2021

Toward a Race-Conscious Critique of Mental Health-Related Exclusionary Immigration Laws

Monika Batra Kashyap, Toward a Race-Conscious Critique of Mental Health-Related Exclusionary Immigration Laws, 26 Mich. J. Race & L. (2021):

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo Saxon race against the threat of racially inferior, undesirable, and unassimilable immigrants. Moreover, by using a DisCrit framework to critique today’s mental health-related exclusionary law, INA § 212(a)(1)(A)(iii), this Article reveals how this law carries forward the white supremacist, racist, and ableist ideologies of eugenics into the present in order to shape ideas of citizenship and belonging. The ultimate goal of the Article is to broaden the conceptualization of race-based immigrant exclusion to encompass mental health-related immigrant exclusion, while demonstrating the utility of DisCrit as an exploratory analytical tool to examine the intersections of race and disability within immigration law.

October 15, 2021 | Permalink | Comments (0)

Convention on Human Rights of Older Persons

Alan Gutterman, Convention on Human Rights of Older Persons, SSRN (2021):

Many have argued that it is appropriate to take into consideration the special circumstances of older persons when developing social and economic policies and there is a growing consensus regarding the need for explicit recognition of the specific rights of older persons in the form of an international convention or treaty that would raise the profile of the issues, serve as a basis for action in different contexts and empower advocates and members of that group to act. In addition, making certain rights explicitly applicable to older persons reduces the likelihood that they will be overlooked in the existing generic framework of human rights instruments that generally does not refer to age but relies solely on inferences that may be ignored or lack practical authority because they are difficult to apply to contexts that are different than those for which they were originally developed. Various arguments against and for a specific international convention or treaty for older persons have been made; however, the Covid-19 pandemic has created a new sense of urgency for such an instrument given the egregious violations of the human rights of such persons during the response to the emergency including discrimination, exclusion, marginalization, violence and abuse. Several roadmaps are available for negotiating and completing a new legally binding international instrument on the human rights of older persons including the UN Convention on the Rights of Persons with Disabilities, the Madrid International Plan of Action on Aging, the UN Principles for Older Persons and the Inter-American Convention on the Protection of the Human Rights of Older Persons and human rights advocates have grown frustrated with the pace of progress within the UN Open-Ended Working Group on Aging and urged States to stop talking and start writing in order to bring the project to fruition.

October 15, 2021 | Permalink | Comments (0)

Thursday, October 14, 2021

Evidence-Based Law: A New Approach to Legal Practice Under the Scope of the Pragmatic Methodologies of Evidence-Based Medicine

Douglas Henrique Marin dos Santos (Centro Universitário IESB), Evidence-Based Law: A New Approach to Legal Practice Under the Scope of the Pragmatic Methodologies of Evidence-Based Medicine, SSRN (2021):

This paper seeks to establish the relationship between Evidence-Based Medicine (EBM) methodologies and Law. To do so, it suggests the methodological deployment of EBM and its adaptation to legal interventions. Systematic reviews and trials may incorporate prediction and monitoring of many variables within complex social environments, in order to ensure and establish the relationship between intervention and outcomes, in quantitative and qualitative ways.

October 14, 2021 | Permalink | Comments (0)

Getting Closer or Falling Apart? Euro Countries After the Euro Crisis

Massimo Bordignon (Universita Cattolica), Nicolò Gatti (University of Lugano), Massimiliano Gaetano Onorato (University of Bologna), Getting Closer or Falling Apart? Euro Countries After the Euro Crisis, SSRN (2021):

We study convergence and divergence dynamics in a sample of EMU countries by assembling an extensive dataset that contains information on public spending and policy outcomes in a variety of areas of government intervention including education, health, and civil justice from the early 1990s. We also focus on other important determinants of a country’s economic performance such as the level of regulation of product and labor markets, as well as the trust in political institutions, quality of governance and inequality. Results show that despite divergent economic growth in the Euro periphery countries after the 2011-13 Euro crisis, the quality of services and level of regulation did not deteriorate or indeed improved, increasing convergence with the core Euro countries. However, the debt crisis dramatically worsened citizens’ perceptions of quality of governance as well as the level of social trust. The very different approach followed with the COVID crisis might have mitigated the problem, but the Euro project has still shaky foundations. This calls in question its future political viability and asks for reform.

October 14, 2021 | Permalink | Comments (0)

Centralization and Reduced Financial Resources: A Worrying Picture for Hungarian Municipalities

Judit Siket (University of Szeged), Centralization and Reduced Financial Resources: A Worrying Picture for Hungarian Municipalities, 19 Cent. Eur. Pub. Admin. Rev. (2021):

The article provides an overview of governmental regulations affecting the operation and economic situation of local self-governments in Hungary during the pandemic crisis. The research covers the period from the declaration of the state of emergency in March 2020 until the end of the year. The study aims to explore the implementation of the European Charter of Local Self-Government’s special provisions related to local democracy concerns in times of crisis. The article analyses the relationship between the pandemic and governmental measures that affected the economic position of local self-governments. It does not provide an objective assessment, but rather presents and analyses the relevant resources. The article is primarily based on the review of the legal framework and the relevant Constitutional Court’s decisions. The analysis demonstrates that the Constitutional Court did not or only partially defended the legal interests of local self-governments. The governmental measures ‘stood the test of constitutionality’. The study confirms the initial assumption that the excessive centralization process was significantly reinforced, while the position of local self-governments in the state organs system weakened. However, some measures cause concern as they highlight deeper problems in the Hungarian legal system, irrespective of the pandemic.

October 14, 2021 | Permalink | Comments (0)

Brexit and COVID-19

Darren Harvey (King's College London), Brexit and COVID-19, King’s L. J. (2021):

The COVID-19 pandemic and the United Kingdom’s (UK) withdrawal from the European Union (EU) constitute the two greatest challenges faced by the UK state in modern times. The former has resulted in ‘the largest peacetime shock to the global economy on record’, with UK Gross Domestic Product ‘set to fall by 11 per cent this year – the largest drop in annual output since the Great Frost of 1709.’1The latter involves the UK leaving both the EU customs union and the EU single market and attempting to replace these arrangements with a much less ambitious free-trade agreement, thus constituting ‘the single gravest act of economic segregation in modern history.’

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October 14, 2021 | Permalink | Comments (0)

Wednesday, October 13, 2021

Impact of the COVID-19 Crisis on the Regulation to Tourism in the Czech Republic

Lukáš Novotný (Jan Evangelista Purkyně University), Pavlína Pellešová (Silesian University), Impact of the COVID-19 Crisis on the Regulation to Tourism in the Czech Republic, 19 Cent. Eur. Pub. Admin. Rev. (2021):

The article deals with issues concerning the regulation of tourism during the COVID-19 crisis in the Czech Republic. Tourism is among the most affected economic sectors by the current pandemic. During the pandemic, the State compensated the financial losses of tourist guides, but such compensations were – according to the guides themselves – insufficient. The aim of the research was to find out how tourist guides see the Czech crisis legislation with regard to tourism and the legislative measures taken by the Czech Government and Ministry of Regional Development to support tourism. For such purpose, questionnaires were distributed to employees in tourism – guides, particularly. We examined their attitudes to the tourism legislation in the Czech Republic in connection with the pandemic situation as well as public administration. Next, in-depth interviews were conducted. On the one hand, the research revealed great interest of tourist guides in the legislation and the current situation in the Czech Republic. On the other hand, it showed a negative evaluation of the adopted legislative measures and crisis legislation. On the basis of the research, the most important aid factors were identified: financial aid, greater support from the State and municipalities, exemption of social security and health insurance payments, promotion of tourism and guide services, support in the form of upgrading skills and retraining. The empirical part of the research, which used the Chi-Square Test of Independence, pointed to a dependence between gender and the attitude related to the legislation knowledge, between gender and monitoring of the current situation in European legislation concerning tourism and tourist guides, and between gender and attitudes when evaluating the legislative measures adopted by the Czech Government and Ministry of Regional Development in relation to tourism support. At the end of the study, some recommendations are provided on how to improve the present situation.

October 13, 2021 | Permalink | Comments (0)

Legal Challenges Underlying COVID-19 Vaccinations

James G. Hodge (Arizona State University), Jennifer L. Piatt (Arizona State University), Leila Barraza (University of Arizona), Rebecca Freed (Arizona State University), Summer Ghaith (Arizona State University), Nora Wells (Arizona State University), Legal Challenges Underlying COVID-19 Vaccinations, J. L. Med. & Ethics (forthcoming 2021):

Immunizing hundreds of millions against COVID-19 through the most extensive national vaccine roll-out ever undertaken in the United States has generated significant law and policy challenges. Beyond initial controversies in the development and FDA authorization of the vaccines, multiple issues pervade their real-time allocation and administration. This commentary briefly examines premier law and policy issues shaping the COVID-19 national vaccination campaign.

October 13, 2021 | Permalink | Comments (0)

Public Administration’s Adaptation to COVID-19 Pandemic – Czech, Hungarian, Polish and Slovak Experience

Matej Horvat (Comenius University), Wojciech Piatek (Adam Mickiewicz University), Lukáš Potěšil (Masaryk University), Krisztina F. Rozsnyai, Public Administration’s Adaptation to COVID-19 Pandemic – Czech, Hungarian, Polish and Slovak Experience, 19 Cent. Eur. Pub. Admin. Rev. (2021):

The pandemic of the infectious disease COVID-19 affected everyday life including public administration. In order to proceed with its duties, public administration had to adapt to these new and unprecedented conditions. The main goal of the article is to assess how public administration bodies adapted to the COVID-19 pandemic, especially in terms of the principle of the speed of procedure in the sense of the right to a fair trial within a reasonable time. In order to achieve this goal, the article focuses on public administration’s adaptation to the pandemic from the perspective of the Visegrad Group countries (V4). It analyses the digitalisation of public administration in relation to delivery, speed of procedure, usage of new technologies, as well as several other areas of public life affected by the pandemic. Specific examples from all V4 countries are analysed and compared in order to identify which approaches were taken by public administration, how they changed the way public administration carried out administrative procedures, and which values were decisive for these changes. Based on these examples, the article concludes that the approach taken by respective legislatures and public administrations in the V4 region complies with the law, but also presents several exceptions.

October 13, 2021 | Permalink | Comments (0)

The Victorian COVID-19 Response: Reflections on Loielo V Giles

Bruce Chen (Deakin University), The Victorian COVID-19 Response: Reflections on Loielo V Giles, Pub. L. Rev. (2021):

This comment analyses the Victorian Supreme Court's decision in Loielo v Giles [2020] VSC 722, in relation to judicial review of the decision to impose a curfew measure on Greater Melbourne in response to a 'second wave' of COVID-19 infections.

October 13, 2021 | Permalink | Comments (0)

Tuesday, October 12, 2021

The Cannabis Conundrum: Constitutional & Policy Concerns in Taxation of the Marijuana Industry

Beckett Cantley (Northeastern University), Geoffrey Dietrich, The Cannabis Conundrum: Constitutional & Policy Concerns in Taxation of the Marijuana Industry, 10 Am. U. Leg. & Pol’y Brief (2021):

The cannabis industry has greatly expanded over the last few years, with a majority of states legalizing cannabis in some form. However, despite the growing popularity of the cannabis industry and more companies entering the market, the Internal Revenue Service (“IRS”) has remained steadfast in denying business deductions for cannabis companies. Under Internal Revenue Code (“IRC”) § 280E, the IRS can disallow all ordinary and necessary business expenses by companies trafficking in illegal drugs. The disallowance of ordinary and necessary business expenses greatly hinders cannabis companies, especially for companies legally operating under state law. Several cannabis companies have also attacked the harsh effects of IRC § 280E on constitutional and public policy grounds. Despite a general shift in medical, legal, and public opinion supporting the full legalization of marijuana, legislation still lags far behind. There is currently pending legislation to address the deductions allowed for marijuana companies and reflects a shift in public policy.

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October 12, 2021 | Permalink | Comments (0)

Innovation Law and COVID-19: Promoting Incentives and Access for New Healthcare Technologies

Rachel Sachs (Washington University in Saint Louis) Lisa Larrimore Ouellette (Stanford University) W. Nicholson Price II (University of Michigan) Jacob S. Sherkow (University of Illinois), Innovation Law and COVID-19: Promoting Incentives and Access for New Healthcare Technologies, COVID-19 and the Law: Disruption, Impact and Legacy (2022):

As the devastating COVID-19 pandemic first swept the globe, it posed a crucial test of biomedical innovation institutions. Containing the virus required developing new technologies including diagnostic tests, pharmaceuticals, and vaccines; manufacturing these technologies at enormous scale; and rapidly distributing them globally. This, in turn, required mobilizing and coordinating scientists, industry, and government at levels not seen since World War II. Underlying the successes and failures of these efforts was the complex legal architecture of biomedical innovation and access.

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October 12, 2021 | Permalink | Comments (0)

An Institutional Solution to Build Trust in Pandemic Vaccines

Yaniv Heled (Georgia State University), Ana Santos Rutschman (Saint Louis University), Liza Vertinsky (Emory University), An Institutional Solution to Build Trust in Pandemic Vaccines, 31 Harv. Pub. Health Rev. (2021):

As the market gatekeeper for new drugs and vaccines, the U.S. Food and Drug Administration (FDA) plays a fundamental role in the response to public health crises. During the COVID-19 pandemic, FDA’s response has been heavily criticized by public health experts, including current and former advisors to the Agency (Baden et al., 2020). The bulk of criticism has centered around FDA’s use of emergency use authorizations (EUAs) covering unapproved COVID-19 products. In at least two instances—the EUA covering chloroquine and hydroxychloroquine, and the one covering COVID-19 convalescent plasma—experts have pointed out that the data used by the FDA in support of an EUA was not “scientifically sound” (Baden et al., 2020) and that the Agency’s decision-making processes appeared to be driven by political pressure and extra-scientific considerations. While the long-term reputational damage to the FDA stemming from these EUA controversies has been discussed abundantly in the literature (Baden et al., 2020), there is a pressing need for short-term measures designed to lessen the growing levels of FDA mistrust. Timely interventions are critical because the EUA pathway is also being used to bring COVID-19 vaccines to market. We, therefore, propose the adoption of a mechanism designed to improve trust in the FDA emergency authorization process, including in the specific context of COVID-19 vaccines, in the form of an independent review body modeled after the now-defunct Congressional Office of Technology Assessment.

October 12, 2021 | Permalink | Comments (0)

9 Steps to End COVID-19 and Prevent the Next Pandemic: Essential Outcomes From the World Health Assembly

Lawrence O. Gostin (Georgetown University), 9 Steps to End COVID-19 and Prevent the Next Pandemic: Essential Outcomes From the World Health Assembly, J. Am. Med. Ass’n. Health F. (2021):

A year ago, the World Health Assembly (WHA) met virtually for the first time since the creation of the World Health Organization (WHO) in 1948. Last year’s WHA adopted a resolution asking states to intensify action to fight COVID-19. Yet a year on, there have been 3.7 million deaths reported, with the real number estimated as more than 7 million. From May 24-31, 2021, the 74th WHA (WHA74) was again held virtually amidst this historic pandemic. The WHA created a member states working group on strengthening WHO preparedness for and response to health emergencies to make recommendations to next year’s WHA. Here are 9 steps to end this pandemic and prevent the next one:

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October 12, 2021 | Permalink | Comments (0)

Monday, October 11, 2021

Seton Hall Law School’s Center for Health & Pharmaceutical Law & Policy's 6th Annual Health Law Works-In-Progress Retreat

Health Law Retreat

Seton Hall Law School's Center for Health & Pharmaceutical Law & Policy will be hosting its 6th Annual Health Law Works-In-Progress Retreat on February 4 & 11, 2022.

Seton Hall Law School's Center for Health & Pharmaceutical Law & Policy will be hosting their Sixth Annual Health Law Works-in-Progress Retreat on February 4 and February 11, 2022, from 12:30-4:00 each day.

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October 11, 2021 | Permalink | Comments (0)

Global Pandemic and the Role of Courts

Fabrizio Cafaggi, Paola Iamiceli (University of Trento), Global Pandemic and the Role of Courts, SSRN (2021):

While policy makers, legislators and scientists have been in the front line in designing the institutional and regulatory framework of the preparedness strategy, the role of courts has soon emerged as a key component of the institutional response to the challenges brought by the current pandemic. Not only courts have overseen statutory legislation and administrative acts, in order to assess their conformity with constitutional norms and the rule of law; but, on a more substantive level, courts have also been custodians of fundamental rights, ensuring the right balance between conflicting ones.

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October 11, 2021 | Permalink | Comments (0)

Ten Million or One Hundred Million Casualties? – The Impact of the COVID-19 Crisis on the Least Developed and Developing Countries and Europe’s Sustainability Agenda

Dirk A. Zetzsche (Universite du Luxembourg), Roberta Consiglio (University of Luxembourg), Ten Million or One Hundred Million Casualties? – The Impact of the COVID-19 Crisis on the Least Developed and Developing Countries and Europe’s Sustainability Agenda, (U. Lux. L. Working Paper Series 2021-004):

This is an updated and extended version of the University of Luxembourg Law Working Paper 2020-008 of 02/10/2020 (https://ssrn.com/abstract=3597657) which puts the European policy response to COVID-19 into context with the European sustainable finance action plan.

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October 11, 2021 | Permalink | Comments (0)

International Assistance after Conflict: Health, Transitional Justice and Opportunity Costs

Geoffrey Swenson (University of London), Johannes Kniess, International Assistance after Conflict: Health, Transitional Justice and Opportunity Costs, Third World Q. (2021):

After violent conflicts, international actors face difficult choices about whether and how to provide assistance. These decisions can have immense consequences. As aid always occurs under conditions of scarcity, theoretical reflection is crucial to reveal the opportunity costs and potential tensions between alternative courses of action. Yet there has been relatively little scholarly reflection on what should constitute priorities for post-conflict assistance and why. This paper advances this debate by comparing two very different areas of assistance that both embody compelling values and goals: public health and transitional justice. It argues that aid for public health deserves greater attention based on powerful normative considerations and its impressive empirical record. It also suggests the need to examine not only clearly underperforming areas, but also tough cases. Transitional justice, despite its strong normative foundations, faces challenges and limitations that justify reform and a reconsideration of the emphasis commonly placed on it. Our intention is not to suggest that long-standing commitments ought to be abandoned or that all aid should be allocated to health. Rather, by scrutinising the priorities of international assistance, we hope to start a general discussion about how the international community can best help societies heal after conflict.

October 11, 2021 | Permalink | Comments (0)

Presidential Administration and FDA Guidance: A New Hope

Nathan Cortez (Southern Methodist University), Jacob S. Sherkow (University of Illinois), Presidential Administration and FDA Guidance: A New Hope, 179 U. Ill. L. Rev. Online (2021):

Assessments of a President’s first 100 days in office typically focus on legislative priorities and executive orders. Less attention is paid to early victories achieved via guidance and other informal acts of “presidential administration.” The COVID-19 pandemic has opened a window for the Biden Administration to effectuate critical public health policies through guidance issued by the Food and Drug Administration. This brief essay highlights the power—and pitfalls—of effectuating public health policy this way, and discusses the lasting power of guidance for any new administration.

October 11, 2021 | Permalink | Comments (0)

Friday, October 8, 2021

The Information Shortfalls of Prosecuting Irresponsible Executives

Miriam H. Baer (Brooklyn Law School), The Information Shortfalls of Prosecuting Irresponsible Executives, DePaul L. Rev. (forthcoming):

This Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which intensified after an internal report surfaced indicating career prosecutors would have preferred more serious charges.

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October 8, 2021 | Permalink | Comments (0)