HealthLawProf Blog

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

Thursday, January 14, 2021

Health Priorities for Sustainable Development

Lisa Sachs (Columbia University), Jeffrey D. Sachs (Columbia University), Health Priorities for Sustainable Development, SSRN:

The right to health has been repeatedly recognized as one of the core human rights, essential for human functioning, human dignity, economic well-being and development. But the right to health continues to elude hundreds of millions and with Covid-19, perhaps billions of people. Poverty remains the most critical obstacle to the realization of the right to health in developing countries. Achieving universal health coverage, before the additional costs of Covid-19, would require roughly $50 billion per year, approximately 0.1 percent of the GDP of the high-income OECD countries. Yet despite this broad understanding of the vicious cycle of poverty and disease, and the means for scaling up health coverage and care, the international community has mustered only a laggard and insufficient response. In addition to the moral and economic imperatives to invest in the right to health, there is also a legal imperative grounded in binding international legal instruments, wherein States have undertaken to realize specific human rights, including through international assistance and cooperation. This chapter explores the legal basis for the universal right to health and the core obligation found in international law of all developed countries to assist in the realization of this core human right. Finally, it outlines possible steps that the international community can take to help achieve the right to health globally.

January 14, 2021 | Permalink | Comments (0)

Rethinking Clean Air: Air Quality Law and COVID-19

Eloise A.K. Scotford (University College London), Rethinking Clean Air: Air Quality Law and COVID-19, 32(3) J. Envt’l L. (2020):

Air quality has long been a serious health problem caused by industrialisation and urbanisation, and a very difficult policy and regulatory problem to address. The COVID-19 pandemic sheds these air quality law challenges in new light. It is a public health crisis with many links to air quality. This opinion piece examines early lessons for air quality law arising from the pandemic.

January 14, 2021 | Permalink | Comments (0)

Diminishing Religious Liberties: COVID Under the First Amendment

Daniel Figueroa (University of Massachusetts), Diminishing Religious Liberties: COVID Under the First Amendment, SSRN:

The coronavirus has caused an unprecedented shutdown of biblical proportions. As the world manages a pandemic, of similarities of the 1918 Influenza, that has caused a shutdown of the United States, gatherings like religious services have been subjected to sweeping stay-at-home orders banning congregation. This piece examines the claims of Churches who have faced restrictive and violative enforcement of government order that has allowed homologous activities, such as shopping or dining, at the expense of religious liberties, past to present.

January 14, 2021 | Permalink | Comments (0)

The Increased Exposure to Coronavirus (COVID-19) for Prisoners Justifies Early Release: and the Wider Implications of This for Sentencing – Reducing Most Prison Terms Due to the Harsh Incidental Consequences of Prison

Mirko Bagaric (Swinburne University Law School), Peter Isham (Northwestern University), Jennifer Svilar, The Increased Exposure to Coronavirus (COVID-19) for Prisoners Justifies Early Release: and the Wider Implications of This for Sentencing – Reducing Most Prison Terms Due to the Harsh Incidental Consequences of Prison, 48(1) Pepperdine L. Rev (2020):

The risk of coronavirus (COVID-19) spreading in prisons is especially acute. This has resulted in an unprecedented number of prisoners being released across the world – including many prisoners in the United States. From the health, social, and political perspectives, this is a sound approach. This is especially the situation in relation to older prisoners and those who have not been imprisoned for serious sexual and violent offenses. Despite the large number of prisoners that are being released, the United States will still have the largest prison population on earth—and by a large margin. However, the coronavirus pandemic and the response to it has considerably wider implications for the broader criminal justice system. In particular, it brings into focus a large number of other unintended adverse consequences experienced by prisoners. These include being deprived of the right to procreate; materially increasing the risk that they will be assaulted or raped in prison; and suffering a considerable reduction in their lifetime earnings. The familial relationships of most prisoners are also normally materially impaired. The adverse incidental harms associated with prison and the impact that this should have on sentencing law is an under-researched area of law. This Article fills that gap in the literature: we argue that sentences for most offenders should be reduced to accommodate the incidental hardships experienced by prisoners. The result would be a large reduction in the United States prison and jail population, without an increase in the crime rate.

January 14, 2021 | Permalink | Comments (0)

Wednesday, January 13, 2021

'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging

Alison Lynch, Michael L. Perlin (New York Law School), 'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging, 25(2) Lewis & Clark L. Rev (2021, Forthcoming):

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy. While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns. In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation.

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January 13, 2021 | Permalink | Comments (0)

Managing COVID-19: Legal and Institutional Issues

Yong-Shik Lee (GSU), Managing COVID-19: Legal and Institutional Issues, SSRN:

The spread of the recent pandemic, COVID-19 – which began in Wuhan, in December of 2019 – has created an unprecedented impact on public health in the United States and across the world. As of November 1, 2020, the United States reported over nine million infection cases and 230,000 deaths. Those cases represent twenty percent of the reported infection cases in the world whereas the population of the United States is less than four percent of the world population. The United States has not been successful in managing this pandemic and stopping its spread effectively even though it possesses the largest medical, financial, and administrative resources in the world. This article analyzes the legal and institutional causes of this failure and explores possible remedies in three areas: provision of public healthcare to combat the pandemic; the regulation of public conduct to prevent the spread of the pandemic; and public access to information. The article also calls for a new approach; it explains why a law and development approach is relevant and applies the General Theory of Law and Development to assess the proposed remedies. The article advocates law and institutions as a remedy to fill the gaps created by ineffective political leadership in the management of COVID-19.

January 13, 2021 | Permalink | Comments (0)

Australia and the COVID-19 Pandemic: Federal, State and Local Responses

Nicholas Aroney (The University of Queensland), Michael Boyce (The University of Queensland), Australia and the COVID-19 Pandemic: Federal, State and Local Responses, SSRN:

The paper describes and evaluates the response of the Australian federal system to the COVID-19 crisis. It argues that despite serious administrative failures, especially in the State of Victoria, the measures implemented by Australian governments at a Commonwealth, State, Territory and local level have been remarkably successful in containing the virus and providing quality health care to those infected. The federal system has worked relatively well, enabling a nationally coordinated approach with localised variations in governmental response, especially at a State and Territory level, although the policy response has not always been well-adjusted to the needs and circumstances of smaller local communities, especially in rural and remote regions. The centrepiece of the intergovernmental response has been the formation of a 'National Cabinet' composed of the Australian Prime Minister, the State Premiers and the Territory Chief Ministers. The National Cabinet has been relatively sucessful in coordinating the Australian governmental response to the crisis. However, considerable debate has attended its novel features and the likelihood of its continued effective operation once the crisis has passed. It is yet to be seen whether it will facilitate genuinely improved collaboration, effectiveness and accountability over the long term. The paper is divided into three parts. Part I explains the background to Australia's federal system and its response to the crisis. Part II describes the underlying constitutional, legislative and institutional framework in place to deal with major emergencies. Part III analyses the actions taken by each level of government and the intergovernmental coordination secured by the National Cabinet. Part IV evaluates the effectiveness of the response of the Australian federal system and discusses whether its achievements involve any enduring improvements or reforms to the system.

January 13, 2021 | Permalink | Comments (0)

Rationing Safe and Effective COVID-19 Vaccines: Allocating to States Proportionate to Population May Undermine Commitments to Mitigating Health Disparities

Harald Schmidt (University of Pennsylvania), Parag A. Pathak (MIT), Michelle A. Williams (Harvard University), Tayfun Sonmez (Boston College), M. Utku Ünver (Boston College), Lawrence O. Gostin (Georgetown University), Rationing Safe and Effective COVID-19 Vaccines: Allocating to States Proportionate to Population May Undermine Commitments to Mitigating Health Disparities, SSRN:

A central goal in the National Academies of Science, Engineering and Medicine’s (NASEM) framework for equitable COVID-19 vaccine allocation is to mitigate existing inequities, particularly those affecting economically worse-off racial and ethnic minorities. The Advisory Committee on Immunization Practice (ACIP) likewise notes that equity demands to “reduce, rather than increase, health disparities in each phase of vaccine distribution”. A crucial question in this regard is how vaccines should be distributed to states. The default is to allocate proportionate to population size. However, this approach risks increasing scarcity for worse-off populations in states where they represent above-average shares. To avoid lower odds of receiving a vaccine for worse-off groups, more vaccines could be given to states with larger shares of worse-off populations, and fewer to ones with smaller shares. We show here the consequences of allocating by these two different approaches.

January 13, 2021 | Permalink | Comments (0)

Wednesday, January 6, 2021

EU Regulation of New Plant Breeding Technologies and their Possible Economic Implications for the EU and Beyond

Justus Wesseler (Wageningen University), Kai P. Purnhagen (University of Bayreuth), EU Regulation of New Plant Breeding Technologies and their Possible Economic Implications for the EU and Beyond, Bayreuth Working Paper Series Food Law (2020):

New plant breeding technologies (NPBTs), including CRISPR gene editing, are being used widely, and they are driving the development of new crops. They are nevertheless a subject of criticism and discussion. According to a summer 2018 interpretation by the Court of Justice of the European Union (CJEU), European Union (EU) law makes most NPBTS subject to regulations governing the use of genetically modified organisms (GMOs) in the EU. The implications of this decision have been widely discussed in the literature, thereby stressing the importance of the decision for plant breeding and international trade within and beyond the EU. This contribution summarizes the status of the debate and highlights issues that have thus far not been considered—particularly with regard to the implications of EU regulations for NPBTs for countries outside the EU. We conclude that the practical implications of the CJEU decision reduce the EU’s comparative advantage and increase the cost of achieving the objectives of the European Green Deal. Our findings reveal an almost complete lack of possibilities for changing the current situation. China and countries oriented towards China are the most likely economic beneficiaries of the current situation.

January 6, 2021 | Permalink | Comments (0)

Snap Expansions and Participation in Government Safety Net Programs

Jeehoon Han (Zhejiang University), Snap Expansions and Participation in Government Safety Net Programs, 58(4) Econ. Inquiry 1929 (2020):

This paper investigates the interactions between health and nutritional assistance programs such as Medicaid, SNAP, WIC, and school lunch programs. Exploiting variation in SNAP eligibility across states and over time, I find strong evidence of program interactions: when a state moves from the federal rule to the most extensive SNAP eligibility rule, enrollment in free school lunch and WIC increases by 4.1 and 7.9 percentage points, respectively. I estimate that the federal government spends an additional 74 cents on the school lunch program and WIC for each dollar spent on SNAP due to the expansion.

January 6, 2021 | Permalink | Comments (0)

Regulation in the Biden Administration

Richard J. Pierce (George Washington University), Regulation in the Biden Administration, GWU Legal Studies Research Paper (2020):

Professor Pierce wrote this essay in which he predicts the regulatory actions of the Biden Administration at the request of a journal that specializes in reporting on regulatory developments to readers in the UK and the EU.

January 6, 2021 | Permalink | Comments (0)

Pandemic Recessions and Contact Tracing

Leonardo Melosi, Matthias Rottner (European University Institute), Pandemic Recessions and Contact Tracing, FRB of Chicago Working Paper (2020):

We study contact tracing in a new macro-epidemiological model in which infected agents may not show any symptoms of the disease and the availability of tests to detect these asymptomatic spreaders of the virus is limited. Contact tracing is a testing strategy aiming at reconstructing the infection chain of newly symptomatic agents. A coordination failure arises as agents fail to internalize that their individual consumption and labor decisions raise the number of traceable contacts to be tested, threatening the viability of the tracing system. The collapse of the tracing system considerably aggravates the pandemic's toll on the economy and mortality. A timely, limited lockdown solves the coordination failure allowing policymakers to buy time to expand the testing scale and to preserve the tracing system. We provide theoretical underpinnings to the risk of becoming infected in macro-epidemiological models. Our solution method is not affected by curse-of-dimensionality problems.

January 6, 2021 | Permalink | Comments (0)

Tuesday, January 5, 2021

U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19

Monika Batra Kashyap (Seattle University), U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19, 11 Cali. L. Rev. 517 (2020):

This Essay contextualizes the racially disproportionate impacts of COVID-19 in the United States within a framework of settler colonialism in order to broaden the understanding of how structural inequality is produced, imposed, and maintained. A settler colonialism framework recognizes that the United States is a present-day settler colonial society whose laws, institutions, and systems of governance continue to reenact the three processes upon which the United States was built—Indigenous elimination, anti-Black racism, and immigrant exploitation. This Essay connects these foundational processes—and their underlying White supremacist logics—to the disparate health impacts of COVID-19 on Indigenous, Black, and immigrant of color communities in the United States. By offering a framework that uncovers the root causes of ongoing patterns of systemic oppression, this Essay hopes to inspire reform efforts that are grounded in truth, justice, and reconciliation.

January 5, 2021 | Permalink | Comments (0)

Sharia Maqashid Urgency In Management of Handling Covid-19 Pandemic in Indonesia

Rida Hesti Ratnasari, Sharia Maqashid Urgency In Management of Handling Covid-19 Pandemic in Indonesia, 1(7) Int’l J. Multi Sci. (2020):

Pandemic COVID-19 had an impact on various sectors of the life of many people. Because of it, the government has been doing a variety of efforts to deal with the impact of COVID-19 as requiring strict health protocols, recommended to Work from Home, set up specific medical facilities, issuing various social and economic programs in communities affected by COVID-19, and others. However, the various attempts that have been made resulted in a lot of problems that have a significant impact on society's welfare in this pandemic. As a country in which a huge part of the population consists of Muslims, of course, people need to pay attention to other aspects of welfare and benefits besides the economic aspects, such as aspects of lineage, soul, and reason which are called maqashid sharia. Therefore, this study aims to analysed the aspects of maqashid sharia in handling COVID-19. By using literature studies and documentation studies, this research proves that the aspects of maqashid sharia have not been fulfilled in handling COVID-19 in Indonesia.

January 5, 2021 | Permalink | Comments (0)

Fiscal Policies and Malnutrition: Signaling Effect of the Sugar-Sweetened Beverages Tax in Catalonia

Eléonore Dal, Cristian MoralesOpazo, José Luis Yagüe Blanco, Arturo Angulo Urarte, Fiscal Policies and Malnutrition: Signaling Effect of the Sugar-Sweetened Beverages Tax in Catalonia, Spain, Fao Agricultural Development Economics Working Paper 2020:

To understand in which ways and to what extent sugar-sweetened beverages (SSBs) taxes trigger reduced consumption, the potential signaling effect of a SSBs tax introduced in Catalonia in May 2017 was analysed. To do so, a questionnaire was distributed in November 2019 in two neighbourhoods from Barcelona with different mean income levels. Associations between variables constructed from the questionnaire and their relation with declared reduced consumption were explored. The goal of this study is to disentangle the different influences of price and signaling effect on the reduction of SSBs’ consumption, analyzing the results based on socio-demographic characteristics and providing policy implications of the findings. Respondents mainly declared a higher awareness of SSBs’ risks for health made them reduced their consumption of SSBs (98.5 percent). Only 10.6 percent of them declared the new price, considered too expensive, did. Nevertheless, the tax in Catalonia seemed to have a signaling effect through the rise in price (100 percent pass-through of the law) and not so much through the awareness of the existence of the tax. The fact people had noticed the rise in price is associated to a recent knowledge of SSBs’ risks, itself related to reduced consumption in the sample. Implementing higher and more salient SSBs taxes on the shelves, and having public campaigns making sure the taxes are known among the entire population would enhance their signaling effect. Moreover, SSBs taxes seem to have the power to shape social norms and habits on the long run if part of a larger denormalization strategy targeting specific groups like young people, characterized by their high consumption of SSBs and smaller responsiveness to the signaling effect of taxes.

January 5, 2021 | Permalink | Comments (0)

EU’s Standards Travel Abroad? A Study on Control Systems for Geographical Indications in the EU and Thailand

Verena Preusse (University of Goettingen), Kai P. Purnhagen (University of Bayreuth), Liesbeth Dries (KU Leuven), EU’s Standards Travel Abroad? A Study on Control Systems for Geographical Indications in the EU and Thailand, Bayreuth Working Paper Series Food L. (2020):

This article examines to what extent EU law influences standards for geographical indications (GI) control beyond the EU’s regulatory borders. In light of the concept of the “Brussels Effect” and taking a socio-legal comparative methodological approach, it analyzes and compares how the EU and in Thailand regulated and implement in GI controls in practice. The analysis of the practical implementation of GI controls is based on one case study from the EU (Germany) and two case studies from Thailand. Ultimately, this article discusses to what extent EU GI regulations shape the regulation and practical implementation of GI controls in Thailand. The findings indicate that Thai producers whose products are registered as GIs in the EU adopt the EU’s more stringent standards for control, while fundamental differences between the EU and Thailand prevail on the regulatory level.

January 5, 2021 | Permalink | Comments (0)

Monday, January 4, 2021

Going Solo: The Law and Ethics of Childbirth During the COVID-19 Pandemic

Nofar Yakovi Gan-Or (Columbia University), Going Solo: The Law and Ethics of Childbirth During the COVID-19 Pandemic, 7(1) J. L. & Bioethics (2020):

The COVID-19 pandemic has had devastating effects on women’s reproductive lives. Women’s access to both abortion and contraceptive care has been restricted in many states across the U.S. Yet, the coronavirus has put a strain on another aspect of women’s reproductive rights: childbirth. In New York, for example, several hospitals instituted bans on all visitors in order to protect obstetric health care providers, as well as patients and newborn babies, from the risks posed by the virus. The policies were met with anger and confusion among expectant parents. An executive order issued in response to such criticism, overruling these policies, was described by some health professionals as unethical and ill-informed. Against this background this Essay maps the ethical and legal issues raised by childbirth visitation bans. It argues that the benefits of such visitation bans should be weighed against the implications they may have on laboring women’s emotional and physical well-being, considering the challenges they already face during facility-based childbirth. It then considers several national and international legal frameworks through which women’s birthing rights may be affirmed, also pointing out where they fall short. Lastly, this Essay makes recommendations for how such rights may be better addressed by different legal actors, including scholars, courts, and legislators.

January 4, 2021 | Permalink | Comments (0)

Pandemic Compliance: A Systematic Review of Influences on Social Distancing Behaviour during the First Wave of the COVID-19 Outbreak

Emmeke Barbara Kooistra (University of Amsterdam), Benjamin van Rooij (University of California), Pandemic Compliance: A Systematic Review of Influences on Social Distancing Behaviour during the First Wave of the COVID-19 Outbreak, SSRN:

During the first wave of the COVID-19 pandemic, mitigation measures compelling people to keep a safe social distance led to a massive, unprecedented behavioural change across the globe. The present study seeks to understand what variables made people comply with such mitigation measures. It systematically reviewed 45 studies with data about compliance behaviour during the first wave (found in searches from March 1st till June 30th 2020). The review shows that a combination of variables shaped compliance behaviour, including people’s fear of the virus, psychosocial factors (including impulsivity, negative emotions, self-efficacy, and social norms), institutional variables (including attitudes towards the mitigation measures, belief in conspiracy theories and knowledge of the virus), and situational variables (capacity to obey and opportunity to violate the rules). Notably, the reviewed studies did not find a significant association between law enforcement (perceived deterrence) and compliance here. The review assesses what these findings mean for behavioural theory and for policy makers seeking to mitigate pandemics like COVID-19. Also, it reflects on the limitations of the reviewed body of work and future directions for pandemic compliance research.

January 4, 2021 | Permalink | Comments (0)

International Access to Public Health Data: An Important Brazilian Legal Precedent

Vera Lúcia Raposo (University of Macau), Ian Freckelton (University of Melbourne), International Access to Public Health Data: An Important Brazilian Legal Precedent, 27(4) J. L. Med. 895 (2020):

Accurate, up-to-date data are the bedrock of effective public health responses, including in the context of the suffering caused by COVID-19. Any action to inhibit the compilation of such data has ramifications locally, nationally and internationally, and risks impairing the global capacity to respond to the virus. This article contextualises the decision of the government of President Bolsonaro of Brazil to reduce the accessibility of contemporary data about COVID-19 infections in Brazil within his views about, and responses to, the virus. It identifies the nature of actions taken to suppress such data by the Brazilian Ministry of Health and then scrutinises a decision by De Moraes J of Brazil's High Court in Sustainability Network v The President of the Republic of Brazil (ADPF 690 MC/DF, 8 June 2020), which quashed the attempted suppression of public health data. The article hails the decision as an important public health law precedent.

January 4, 2021 | Permalink | Comments (0)

COVID-19: Cost-Benefit Analysis and Politics

Dan Priel (York University), COVID-19: Cost-Benefit Analysis and Politics, 57 Osgoode Hall L. J. (2020):

The COVID-19 pandemic forced governments around the world to make tough political decisions about the cost of saving lives and the limits of doing so. One of the striking aspects of the debates over these necessary tradeoffs is the relatively little weight individual rights seemed to have carried in these discussions. At first, this might have seen the triumph of cost-benefit analysis (CBA); and in a sense, it was. However, the pandemic has also shown the limitations of CBA, especially in the face of severe uncertainty. This essay reviews some of the sources of uncertainty in the context of the pandemic and shows how, in the face of such uncertainty, different countries fall back onto their political commitments, which include concern for individual rights. I thus argue that rather than being in competition to CBA, political considerations (including concern for individual rights) end up being incorporated into an impressionistic calculation of costs and benefits of government action. I conclude by suggesting that this is where future discussion of the theoretical foundations of CBA should focus on.

January 4, 2021 | Permalink | Comments (0)