Browsing by Author "Robert H. McKinney School of Law"

Now showing 1 - 10 of 70
  • Thumbnail Image
    Item
    Abortion and Compelled Physician Speech
    (Wiley, 2015) Orentlicher, David; Robert H. McKinney School of Law
    As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment precludes the government from forcing individuals to voice the government’s views. On the other hand, legislatures and courts can insist that physicians properly explain to patients about their medical conditions and potential treatments so patients can make informed decisions about their health care. When taking care of patients, doctors assume a duty to speak, as well as a duty to speak responsibly. Ordinarily, the doctrines of free speech and informed consent coexist without much difficulty. But as states have expanded the kinds of information that abortion providers must disclose to pregnant women, First Amendment concerns have become increasingly salient. In this article, I will use several examples of speech mandates for abortion and other health care services to identify principles for distinguishing between legitimate regulation of the informed consent process and illegitimate interference with the freedom of speech. First, speech mandates should be permissible when they provide material information to patients about their health care decisions. If the state is trying to ensure that patients are fully informed, the mandates should be allowed. As a corollary, the information must be truthful and not be misleading. The goal is to inform not to misinform. Second, speech mandates that pertain to moral considerations should not be permitted. Rather than informing the patient’s decision, these mandates force the physician or other health professional to espouse the state’s ideology. Courts and legal scholars have proposed other ways to distinguish permissible from impermissible mandates (e.g., whether the government takes sides, manipulates emotions, or uses graphic images). However, these additional distinctions raise their own concerns and should not be needed. If courts strictly apply the requirements that compelled speech pertain to medical facts about abortion and its alternatives rather than abortion ideology and that the compelled speech be truthful and not misleading, then the interests of pregnant women and their physicians should be protected.
  • Thumbnail Image
    Item
    The Accidental Administrative Law of the Medicare Program
    (2015) Kinney, Eleanor D.; Robert H. McKinney School of Law
  • Thumbnail Image
    Item
    An ethics framework for consolidating and prioritizing COVID-19 clinical trials
    (Sage, 2021) Meyer, Michelle N.; Gelinas, Luke; Bierer, Barbara E.; Chandros Hull, Sara; Joffe, Steven; Magnus, David; Mohapatra, Seema; Sharp, Richard R.; Spector-Bagdady, Kayte; Sugarman, Jeremy; Wilfond, Benjamin S.; Fernandez Lynch, Holly; Robert H. McKinney School of Law
    Given the dearth of established safe and effective interventions to respond to COVID-19, there is an urgent ethical imperative to conduct meaningful clinical research. The good news is that interventions to be tested are not in short supply. Unfortunately, the human and material resources needed to conduct these trials are finite. It is essential that trials be robust and meet enrollment targets and that lower-quality studies not be permitted to displace higher-quality studies, delaying answers to critical questions. Yet, with few exceptions, existing research review bodies and processes are not designed to ensure these conditions are satisfied. To meet this challenge, we offer guidance for research institutions about how to ethically consolidate and prioritize COVID-19 clinical trials, while recognizing that consolidation and prioritization should also take place upstream (among manufacturers and funders) and at a higher level (e.g., nationally). In our proposed three-stage process, trials must first meet threshold criteria. Those that do are evaluated in a second stage to determine whether the institution has sufficient capacity to support all proposed trials. If it does not, the third stage entails evaluating studies against two additional sets of comparative prioritization criteria: those specific to the study and those that aim to advance diversification of an institution’s research portfolio. To implement these criteria fairly, we propose that research institutions form COVID-19 research prioritization committees. We briefly discuss some important attributes of these committees, drawing on the authors’ experiences at our respective institutions. Although we focus on clinical trials of COVID-19 therapeutics, our guidance should prove useful for other kinds of COVID-19 research, as well as non-pandemic research, which can raise similar challenges due to the scarcity of research resources.
  • Thumbnail Image
    Item
    The Basic Logic of Post-Tinker Jurisprudence
    (2014) Wright, R. George; Robert H. McKinney School of Law
    Tinker v. Des Moines Independent Community School District1 is rightly regarded as a landmark student speech case. At this point, however, it is fair and important to ask about the likely consequences of radically abandoning Tinker and the succeeding case law.2 What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion below briefly pursues this question and endorses a radical abandonment of Tinker and the succeeding cases as binding case law.
  • Thumbnail Image
    Item
    The Best Interest Is the Child: A Historical Philosophy for Modern Issues
    (2013) Silva, Lahny R.; Robert H. McKinney School of Law
    A little over a century after the creation of the first juvenile court in America, the states and the federal government continue to try to find an effective and practical solution to juvenile delinquency. Beginning with the “Best Interest of the Child Standard” in 1899, juvenile justice policy has evolved into a mixed bag of philosophies. State statutes littered with “Best Interest” rhetoric, have interestingly resulted in state policies that are retributive in nature and disproportionately affect minority communities. The disconnect between theory and practice is the product of decades of socio-political influence on juvenile justice policy as well as a replacement of the “Best Interest” standard with staunch retributive ideals. This article puts forth a contemporary understanding of “Best Interest,” so as to unite theory and practice. This union may provide guidance for more effective policies in the realm of juvenile justice. America faces a costly and overburdened prison industrial complex that is fed by the juvenile justice system. Transfer provisions seamlessly transport juvenile offenders into adult court for criminal prosecution. Juveniles adjudicated in adult court face harsher penalties and diminished socio-economic opportunity than juveniles adjudged in juvenile court. While state lawmakers have recently recognized a decrease in violent crime among juveniles overall, many have refrained from advocating policies that promote true “Best Interest” ideals and instead have maintained a focus on law and order. Recent scientific research and psychosocial studies along with the past decade of United States Supreme Court precedent suggest that policymakers’ emphasis on retribution is misguided and anachronistic. Instead, legislators ought to be recognizing the real differences between juveniles and adults namely the “immaturity” of minors as well as their penchant for rehabilitation. This principle is already entrenched in other areas of law such as the minor abortion line of cases. This article advocates for a return to the “Best Interest of the Child” standard. Calling for an organic view of “Best Interest where contemporary contextual factors may be considered,” this article suggests that “Best Interest” calls for a focus on mitigation. This argument builds on Elizabeth S. Scott’s and Laurence Steinberg’s mitigation theory of juvenile justice. Scott and Steinberg argue that adolescents, because of their biological and psychosocial distinctions, possess a diminished capacity and are thereby less criminally blameworthy. Therefore, they argue, this diminished capacity ought to be recognized in the adult prosecution of juveniles. This article argues that Scott and Steinberg’s mitigation paradigm implicitly contains Best Interest principles that may help guide legislators in fashioning legal tools for which to adjudicate juvenile offenders in adult court. Beginning with a call for a “presumption of immaturity” in transfer decisions, this essay begins to examine practical solutions within a mitigation paradigm guided by Best Interest principles. Borrowing from minor abortion jurisprudence, it is contended that in those jurisdictions that have established automatic transfer provisions there ought to be a “presumption of immaturity” that the state must overcome prior to commencing an adult prosecution of a juvenile. Moreover, in the actual adjudication of a juvenile in adult court, defenses such as diminished capacity and extreme mental or emotional disturbance (“EMED”) may provide a vehicle for the admissibility of psychological and neurological evidence associated with adolescent immaturity and development thereby allowing the fact-finder to consider such evidence in its determination of criminal blameworthiness.
  • Thumbnail Image
    Item
    Big Data Proxies and Health Privacy Exceptionalism
    (2014) Terry, Nicolas P.; Robert H. McKinney School of Law
    This article argues that, while “small data” rules protect conventional health care data (doing so exceptionally, if not exceptionally well), big data facilitates the creation of health data proxies that are relatively unprotected. As a result, the carefully constructed, appropriate, and necessary model of health data privacy will be eroded. Proxy data created outside the traditional space protected by extant health privacy models will end exceptionalism, reducing data protection to the very low levels applied to most other types of data. The article examines big data and its relationship with health care, including the data pools in play, and pays particular attention to three types of big data that lead to health proxies: “laundered” HIPAA data, patient-curated data, and medically-inflected data. It then reexamines health privacy exceptionalism across legislative and regulatory domains seeking to understand its level of “stickiness” when faced with big data. Finally the article examines how health privacy exceptionalism maps to the currently accepted rationales for health privacy and discusses the relative strengths of upstream and downstream data models in curbing what is viewed as big data’s assault of health privacy.
  • Thumbnail Image
    Item
    Biobanking and public health: is a human rights approach the tie that binds?
    (Springer, 2011-07-15) Meslin, Eric M.; Garba, Ibrahim; Robert H. McKinney School of Law
    Ethical principles guiding public health and genomic medicine are often at odds: whereas public health practice adopts collectivist principles that emphasize population-based benefits, recent advances in genomic and personalized medicine are grounded in an individualist ethic that privileges informed consent, and the balancing of individual risk and benefit. Indeed, the attraction of personalized medicine is the promise it holds out to help individuals get the “right medicine for the right problem at the right time.” Research biobanks are an effective tool in the genomic medicine toolbox. Biobanking in public health presents a unique case study to unpack some of these issues in more detail. For example, there is a long history of using banked tissue obtained under clinical diagnostic conditions for later public health uses. But despite the collectivist approach of public health, the principles applied to the ethical challenges of biobanking (e.g. informed consent, autonomy, privacy) remain individualist. We demonstrate the value of using human rights as a public health ethics framework to address this tension in biobanking by applying it to two illustrative cases.
  • Thumbnail Image
    Item
    Catching Fire: A Case Study Illustration of the Need for an Interdisciplinary Clinical Case Partnership and Resulting Student Successes
    (Sage, 2015-01) Hagan, Carrie A.; Boys, Stephanie K.; Robert H. McKinney School of Law
    There is an increasing pressure calling for legal education’s evolution into building more practical competencies to better prepare law students for practice upon graduation. Collaborative learning between law students and social work students in a clinical setting enriches their respective educations well beyond their respective traditional curricula. By working together, the students learn other methods on how to handle different clients and their unique situations and how to work with someone of a different disciplinary expertise with the same client. This article begins with a law student’s mishandling of an initial client interaction, discusses the advantages of an interdisciplinary education with social work students and then reimagines the initial encounter after the law student has been taught by an interdisciplinary partnership between law and social work schools. Law students gain a better and broader perspective when working alongside social work students to tackle problems that they not only face in a clinical setting, but also will encounter both in practice and in life.
  • Thumbnail Image
    Item
    Concussions and Sports: Introduction
    (2014) Orentlicher, David; Robert H. McKinney School of Law
    While it has become clear that concussion is a serious problem in football and other sports, it is not clear how best to respond to the problem. When athletes suffer concussions — or injuries that might be a concussion — what steps should be taken? More importantly, has the response to concussion focused too much on management of concussive injury and not enough on prevention of harm? This article provides an introduction to a symposium that sheds light on a number of questions about concussions and sports, from both theoretical and empirical perspectives. The papers inform our understanding about the adoption, implementation, and effectiveness of state statutes and other policies designed to reduce the harm from concussions. Ultimately, we must ask whether some sports are so dangerous that they should no longer be played. It is one thing to assume risks to health when there are meaningful benefits to be gained. But there are many ways to exercise, develop teamwork skills, or gain the other benefits of competitive athletics without playing football or other sports that lead to concussion. Ultimately, the social value of violent sports seems to rest heavily on the entertainment they offer to spectators. And that should lead us to ask whether there is any legitimate role for the levels of physical violence that we tolerate in sport.
  • Thumbnail Image
    Item
    Congress could use an arcane section of the 14th Amendment to hold Trump accountable for Capitol attack
    (The Conversation US, Inc., 2021-01-29) Magliocca, Gerard; Robert H. McKinney School of Law