This Article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation–challenges to Concentrated Animal Feeding Operations (“CAFOs”) and challenges to the use of genetically modified organisms (“GMOs”) in the food system–chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.
With the American health care system facing a looming crisis due to unsustainable rates of medical cost inflation, the government has reacted by passing the Patient Protection and Affordable Care Act. While the present ubiquity of third-party payers in the form of health insurance or government programs spawns inefficiencies and perverse incentives that drive market forces to work against, rather than toward, maximum social welfare, the reform bill threatens to exacerbate the very inefficiencies it seeks to avoid. Rather than focusing on controlling medical cost inflation, the bill seeks to include high-risk groups that are normally priced out of the insurance market, thus placing more stress on the payment model. The individual mandate—making health insurance mandatory—ensures that the low-risk young and healthy demographic will bear the cost of this increased burden on the insurance system. This Note examines how the recent health reform bill proposes to restructure the insurance market itself and analyzes the inadequacies of the individual mandate. Further, it briefly explores the constitutional challenges to the mandate and discusses whether the health reform bill is salvageable in light of its deficiencies.
On April 16, 2009, seven-year-old Gabriel Myers locked himself in the bathroom of his Florida foster home and took his own life. Just three weeks prior, Myers was prescribed Symbyax, a combination of antidepressant and antipsychotic drugs not approved by the U.S. Food and Drug Administration (“FDA”) for use in children. Myers’s Department of Children & Families (“DCF”) records document a tragic history of neglect, allegations of sexual abuse, and movement between at least four foster care placements after removal from his mother’s care. Diagnosed with attention deficit hyperactivity disorder, mood disorder, and possibly depression, Myers took several medications including Lexapro and Vyvanse. After his death, DCF appointed a Work Group to assess Myers’s case as well as the use of psychotropic medication for other children in state foster care. While the Work Group determined that safeguards in Florida existed, the “core failures in the system . . . stem[med] from lack of compliance with [such safeguards] and . . . failures in communication, advocacy, supervision, monitoring, and oversight.”
Giovan Bazan was only six-years-old when he was first treated with medication for hyperactivity. Years later, while taking Ritalin at a double dosage, he was prescribed an antidepressant after another physician saw him “so mellowed out that he barely reacted.” Twenty-year-old Bazan is now free of all medications and recognizes that “[t]hey start you on one thing for a problem, then the side effects mean you need a new medicine . . . [a]s a foster kid, I’d go between all these doctors, caseworkers, therapists, and [it] seemed like every time there was a new drug to try me on.”
Voluntary, altruistic bone marrow donation is currently the only way for a patient to receive a bone marrow transplant. Unfortunately, bone marrow supply from altruism falls far short of demand, making our current system insufficient. Although scholars have proposed numerous avenues for change in the organ donation system, no change has occurred. One popular proposal is to remove the ban on compensation for organ donors, a proposition that implicates many ethical and moral concerns. These moral concerns include the commodification of the human body, the exploitation of poor and ethnic minority populations, and the general repugnance that some feel toward the idea of selling one’s body. If compensation for bone marrow donation were allowed, we may be able to overcome these moral and ethical concerns both conceptually and constitutionally. For example, the ethical dilemmas that surround bone marrow donation are somewhat abated by the rise of new technologies that have made bone marrow donation much less intrusive.
Even after landmark health reform in 2010, our health care system will not achieve universal coverage. The Patient Protection and Affordable Care Act is expected to leave twenty-three million people uninsured after a decade. And until several major provisions take effect in 2014, fifty million people will remain uninsured. This Article argues that cross-border health insurance plans that utilize foreign medical providers are a surprisingly feasible alternative for the residually uninsured. Cross-border plans can be much less expensive than traditional, domestic-only plans. And they might appeal to immigrants and others that are neither eligible for public plans nor able to afford private ones. The Article begins by evaluating the 2010 health reform legislation and the populations that it leaves out. I then reveal how gaps in our health care system are being filled by foreign medical providers. Three major constituents of the U.S. health care system now utilize foreign providers: patients travel as “medical tourists” when they cannot afford care domestically; insurers outsource high-margin procedures to foreign hospitals; and somewhat perversely, some U.S. hospitals facing extraordinary expenses repatriate immigrants to their native countries in a form of international “patient dumping.” These trends reflect what I call the “new geography” of health care. The Article demonstrates how cross-border plans might appeal both to immigrants and to the nonimmigrant middle class that cannot afford traditional insurance. I explain how cross-border plans operate and propose various solutions to the legal and practical impediments that presently discourage such arrangements. For example, the Article applies “new governance” theories to recommend how to impose quality standards on foreign providers that otherwise reside beyond the jurisdiction of domestic regulators. This Article also confronts an underlying normative question: How much should we relax or reconfigure our standards to make health care more accessible? I argue that if a significant portion of residents cannot afford health care in the United States–and if we are not prepared to provide it publicly as most other countries do–then we should reimagine current laws that contemplate only domestic care and create a legal framework that allows patients to seek it elsewhere.
INTRODUCTION “The use of steroids [in sports] has become a public health crisis. Half a million kids a year in the U.S. are taking steroids . . . and many of them do this because they are emulating their sports heroes.” In the past several years, performance-enhancing drug (“PED” or “steroid”) use in major professional sports has captured the attention of not only average fans, but also lawmakers in Congress. Rampant steroid abuse in Major League Baseball (“MLB”) catalyzed a 2005 congressional hearing at which famous ballplayers like Mark McGwire testified. In 2009, two National Football League (“NFL”) players challenged their suspensions for using substances banned by the NFL collective bargaining agreement (“CBA”) in court. This suggests sports leagues may lack the legal authority to conclusively bargain for and uniformly apply certain aspects of a CBA such as the PED policy—a fact that compelled NFL Commissioner Roger Goodell to seek congressional intervention in the steroids arena.
During this so-called steroids era, sports radio and television shows have shifted in focus from the magic of record-breaking performances to the possibility that PED use tainted those achievements. Cynics have cast the entire 1990s as a statistical lie, claiming there is no way to tell who was taking PEDs and who was not; as a result, many commentators have recommended adding asterisks to individual or team records that indicate those records might have been tainted by PED abuse. Scholars from a variety of fields have explored how PED use has negatively affected the integrity of professional sports, the medical dangers of taking PEDs, and how professional athletes’ use of PEDs has adversely affected youth athletes. In response to this outburst of PED use in professional sports and the subsequent explosion of literature decrying it, leagues such as the NFL and MLB have significantly increased the penalties for players caught using PEDs in an attempt to cleanse the leagues’ images.
Responding to Courtney G. Joslin, Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010).
In her article, Courtney G. Joslin persuasively argues that the children born via assisted reproductive technology (“ART”) are placed at a serious financial disadvantage under the law. Joslin is right to point out that parentage provisions that apply only to children born to heterosexual married couples disadvantage nonmarital children of ART financially as well as emotionally and developmentally. Joslin’s solution is to propose extending to such children what she terms the “consent = legal parent” rule, meaning that “any individual, regardless of gender, sexual orientation, or marital status, who consents to a woman’s insemination with the intent to be a parent is a legal parent of the resulting child.” Such a rule removes a period of time during which a child is unprotected by the lack of legal recognition of a parent. This response identifies an ambiguity in and proposes a clarification of Joslin’s consent = legal parent rule with regard to conception, and with regard to consent during the period after conception and before birth.
This bibliography serves as the 2006–2008 update to Gerontology and the Law: A Selected Annotated Bibliography. First published in 1980 by Law Library Journal, the bibliography has since been updated eight times between 1982 and 2007 in the Southern California Law Review. The original bibliography and the first five updates provided citations to a variety of books, articles, and other law-related materials on various aspects of the law and gerontology. Starting with the sixth update, the style and content of the bibliography was changed in two ways: first, the bibliographers took a more selective approach in choosing resources to include; and second, the bibliographers added annotations that briefly describe the source after each citation.
The Supreme Court has declared that children should not be penalized based on the circumstances of their birth. In the context of assisted reproductive technology (“ART”), however, parentage provisions that apply only to children born to heterosexual married couples continue to be the rule rather than the exception. Many of the policymakers resisting the calls for reform have been influenced by the debate currently playing out in the same-sex marriage context regarding the causal connection (or lack thereof) between marriage and gender, on the one hand, and positive child welfare outcomes, on the other.
This Article approaches this increasingly contentious debate in a novel way by focusing on an issue on which both sides converge—the desire to protect the well-being of children. Using this lens, the Article accomplishes two things. First, this Article offers a doctrinal analysis of an issue that, until now, has remained almost entirely unexplored. Specifically, the Article demonstrates that, contrary to the asserted child welfare goals of marriage-preference proponents, marriage-only ART rules harm the financial and, in turn, the overall well-being of nonmarital children. Second, the Article considers how to reform the inadequacies of the current regime. After assessing a range of potential normative solutions, the Article concludes by proposing a new theoretical framework for determining the legal parentage of all children—both marital and nonmarital—born through ART.
The field of psychiatry has identified a problem with the law, its source, and suggested a solution. The problem is “legislators . . . us[ing] psychiatric commitment [of sex offenders] to effect nonmedical societal ends.” The source is U.S. Supreme Court decisions allowing legislatures to use definitions of mental illness that have no basis in psychiatry: “As a consequence of U.S. Supreme Court decisions that are written ambiguously and tentatively, the bright line separating . . . [the legal conception of] mental disorder [(for the purposes of civilly committing sex offenders under sexually violent predator statutes)] from ordinary criminal behavior is difficult to draw and tests a no-man’s land between psychiatry and the law.”
The solution is “[g]reater clarity and standardization . . . com[ing] from both sides: the legalists who interpret the law and the clinicians who apply and work under it.” A close analysis of the psychiatric critique of these statutes that allow for the civil commitment of sex offenders reveals psychiatry’s own imprecision within the bounds of psychiatry and in the domain of the overlap between psychiatry and the law.