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    • Permalink for 'Are Independent Pharmacies in Need of Special Care? An Argument Against an Antitrust Exemption for Collective Negotiations of Pharmacists'

      Are Independent Pharmacies in Need of Special Care? An Argument Against an Antitrust Exemption for Collective Negotiations of Pharmacists

      Posted: December 4th, 2013, 9:05am CST

      The last half-century has witnessed a dramatic rise in both health care spending and associated efforts to rein in costs. As these factors and others coalesced, the “managed care revolution” was born. In the last several decades, health maintenance organizations (HMOs) — along with other managed care organizations (MCOs), such as preferred provider organizations (PPOs), point of service (POS) plans, and managed indemnity plans — have attempted to balance patients’ quality of care against steadily rising health care costs. Although insurers greatly have improved access to care, they have faced sharp criticism from health care providers. Physicians and pharmacists, in particular, have accused insurers of using their unbridled market power to threaten providers’ decision-making autonomy, endanger their livelihoods, and reduce the quality of patient care. As a result, a growing number of providers have begun to search for ways to bolster their bargaining power in order to negotiate more advantageous terms with MCOs.

    • Permalink for 'Innovation Incentives or Corrupt Conflicts of Interest? Moving Beyond Jekyll and Hyde in Regulating Biomedical Academic-Industry Relationships'

      Innovation Incentives or Corrupt Conflicts of Interest? Moving Beyond Jekyll and Hyde in Regulating Biomedical Academic-Industry Relationships

      Posted: December 4th, 2013, 9:05am CST

      The most contentious, unresolved issue in biomedicine in the last twenty-five years has been how to best address compensated partnerships between academic researchers and the pharmaceutical industry. Law and policy deliberately promote these partnerships through intellectual property law, research funding programs, and drug and device approval pathways while simultaneously condemning them through conflict-of-interest (COI) regulations. These regulations have not been subjected to the close scrutiny that is typically utilized in administrative law to evaluate and improve regulatory systems. This Article suggests that the solution to this standoff in biomedical law and policy lies in an informed, empirical approach. Such an approach must both recognize such partnerships’ legal and practical variations, as well as classify them based on their benefit to innovation and their harm to research biases. Ultimately, this approach must facilitate administrative reforms that would convert what is now an inherently arbitrary, yet widespread, regulatory regime into an epistemically rich mechanism for distinguishing between harmful and beneficial partnerships.

    • Permalink for 'The Origins of American Health Libertarianism'

      The Origins of American Health Libertarianism

      Posted: December 4th, 2013, 9:05am CST

      This Article examines Americans’ enduring demand for freedom of therapeutic choice as a popular constitutional movement originating in the United States’ early years. In exploring extrajudicial advocacy for therapeutic choice between the American Revolution and the Civil War, this piece illustrates how multiple concepts of freedom in addition to bodily freedom bolstered the concept of a constitutional right to medical liberty. There is a deep current of belief in the United States that people have a right to choose their preferred treatments without government interference. Modern American history has given rise to movements for access to abortion, life-ending drugs, unapproved cancer treatments, and medical marijuana. Recently, cries of “Death Panels” have routinely been directed against health care reform proposals that citizens believe would limit the products and procedures covered by government health insurance. Some of the most prominent contemporary struggles for health freedom have been waged in court. But other important recent battles for freedom of therapeutic choice have taken place in other forums, from legislative hearings to Food and Drug Administration advisory committee meetings to public demonstrations. This attitude of therapeutic libertarianism is not new. Drawing mainly on primary historical sources, this Article examines arguments in favor of freedom of therapeutic choice voiced in antebellum America in the context of battles against state licensing regimes. After considering some anti-licensing arguments made before independence, it discusses the views and statements of Benjamin Rush, an influential founding father who was also the most prominent American physician of the early national period. The Article then analyzes the Jacksonian-era battle against medical licensing laws waged by the practitioners and supporters of a school of botanical medicine known as Thomsonianism. This triumphant struggle was waged in explicitly constitutional terms, even though it occurred entirely outside of the courts. The Thomsonian campaign thus offers one of the most striking examples of a successful popular constitutional movement in American history. This article shows that, at its origin, the American commitment to freedom of therapeutic choice was based on notions of not only bodily freedom, but also economic freedom, freedom of conscience, and freedom of inquiry. Finally, this Article considers ways in which this early history helps illuminate the nature of current struggles for freedom of therapeutic choice.

    • Permalink for 'Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice'

      Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice

      Posted: December 4th, 2013, 9:05am CST

      Global health inequities cause nearly 20 million deaths annually, mostly among the world’s poor. Yet international law currently does little to reduce the massive inequalities that underlie these deaths. This Article offers the first systematic account of the goals and justifications, normative foundations, and potential construction of a proposed new global health treaty, a Framework Convention on Global Health (FCGH), grounded in the human right to health. Already endorsed by the United Nations Secretary-General, the FCGH would reimagine global governance for health, offering a new, post-Millennium Development Goals vision. A global coalition of civil society and academics has formed the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI) to advance the FCGH.

    • Permalink for 'Insuring Children Against Parental Incarceration Risk'

      Insuring Children Against Parental Incarceration Risk

      Posted: November 14th, 2013, 10:08am CST

      In the United States, where government policies have resulted in extremely high incarceration rates, parental incarceration is a prevalent, distinct, and severe form of childhood disadvantage. Children who lose their parents to incarceration suffer unique harms, which are not addressed by current social insurance programs. In particular, an inmate’s child suffers direct financial harm from losing financial and in-kind support, from diversion of household resources to the incarcerated inmate parent, and from deficits in future contributions due to the parent’s ex-felon status. Children of incarcerated parents tend to already be poor, and these additional deprivations create severely negative consequences for their welfare. This Article proposes that the state should provide children with incarceration insurance: an upfront subsidy to the child whose parent goes to prison, to be repaid to the state by the incarcerated parent on a deferred basis in lieu of child support. The state should supply this social insurance program because of its interest and obligation in promoting child welfare and in enforcing parental responsibility. The United States in particular has a strong obligation to the children who bear hidden costs of the government’s choice to pursue an aggressive criminal punishment regime. This proposal is an innovative departure from the status quo, which does little to support children while allowing child support arrears to accrue against inmate parents. The proposal allows for a menu of implementation options that states can choose from to fit their own circumstances and needs. A baseline version of the proposal engages with the question of how to assign family responsibility, legal and philosophical inquiries about desert, and how to mitigate the impact of localized disadvantage on broader society. The resulting policy regime thus must support the basic motivations behind the proposal: to plug a resource gap and thus promote child welfare, especially for disadvantaged children, to maintain the bonds of parental obligation while incarceration forces physical removal, and to propel the state to neutralize the effects of its own role in driving up parental incarceration for disadvantaged children. Doing so will allow both the parent and the state to internalize some collateral costs of mass incarceration currently borne by innocent third parties.

    • Permalink for '“A DANGEROUS UNDERTAKING”: THE PROBLEM OF INTENTIONALISM AND PROMISE OF EXPERT TESTIMONY IN APPROPRIATION ART INFRINGEMENT CASES'

      “A DANGEROUS UNDERTAKING”: THE PROBLEM OF INTENTIONALISM AND PROMISE OF EXPERT TESTIMONY IN APPROPRIATION ART INFRINGEMENT CASES

      Posted: November 14th, 2013, 10:00am CST

      In May 2011, a federal district court issued a ruling that shocked the art world. In a copyright infringement action against prominent artist Richard Prince,[1] Judge Deborah Batts of the Southern District of New York dispensed the art world equivalent of the death penalty: an injunction requiring that artworks be “deliver[ed] up for impounding, destruction, or other disposition.”[2] The condemned works—a series of Prince collages titled “Canal Zone”—contained photographs from Yes, Rasta, a book of portraits of Jamaican Rastafarians by the photographer Patrick Cariou.[3] Prince had cut out images from the book and painted over them, combining them in his collages with other original and found images.[4] The court held that by using images from Yes, Rasta, Prince infringed Cariou’s copyrights, and his work did not qualify for the fair use defense.[5]

      [1] See Richard Prince Biography, Gagosian Gallery, [gagosian.vaesite.net] (last visited Feb. 1, 2013).

      [2] Cariou v. Prince, 784 F.Supp.2d 337, 355 (S.D.N.Y. 2011).

      [3] Id. at 343-44.

      [4] Id.

      [5] Id. at 353-54.

    • Permalink for 'Labor and the Anti-Trust Laws'

      Labor and the Anti-Trust Laws

      Posted: October 28th, 2013, 9:49am CDT

      THIS year marks the 50th anniversary of the birth of the Sherman Law. Before the statute was three years old, in the seventh proceeding under it instituted by the government, labor activities in the course of a strike of transportation workers in Louisiana were enjoined as violative of its prohibitions. From that day to the present the Sherman Law has been successfully invoked against labor activities in a great variety of cases. The Clayton Act of 1914, that "industrial magna charta" whose words were regarded by Samuel Gompers as "sledge hammer blows to the wrongs and injustices so long inflicted upon the workers" and which President Wilson characterized as giving "a veritable emancipation" to "the working men of America, was found in fact to be important for what "it does not authorize" and to be "merely declaratory of what was the best practice always." Its practical significance came to be the addition of a remedy of a private suit for injunction under the Sherman Law to the original remedies of criminal prosecution, government suit for injunction and private action for treble damages-a change of considerable importance since about half of the proceedings against labor under the anti-trust laws after 1914 have been private injunction suits under the Clayton Act. The result was, as observed by Professor Frankfurter in 1930, that whatever uncertainty there may be about the effectiveness of the Sherman law with respect to "industrial combinations" and "economic forces," "there can be no doubt of its potency as a restraint upon the activities of organized labor . . . . when all discounts [for "the inadequacies of labor leadership" and "the consequences of economic forces"] are made, it is common ground among students of the Sherman Law, as well as among industrial and labor leaders, that it has been one of the strongest influences counteracting trade unionism in the United States."

    • Permalink for 'Reforming Procedure of the N.L.R.B.'

      Reforming Procedure of the N.L.R.B.

      Posted: October 28th, 2013, 9:49am CDT

      My subject implies a dichotomy which constitutes one of the law's perpetual paradoxes, seemingly impossible of resolution, the differentiation between procedure and substance. By all. experience divorcement of the two seems impossible. Procedure must be a function of the substance sought to be achieved; it is the instrument fashioned to attain previously determined goals. Yet substance is the function of the procedures which produce it; policy can be made, changed, perverted by procedure. This seeming paradox is not peculiar to administrative law and, perhaps, not even peculiar to law alone. And it does not leave us helpless. It merely requires us, when considering procedural reform-specifically in administration -to bear clearly in mind three obvious ideas-axioms so commonplace that, unless specifically adverted to, they are likely to ·be ignored to the detriment of our thinking.

    • Permalink for 'Intelligence and Delinquency'

      Intelligence and Delinquency

      Posted: October 28th, 2013, 9:49am CDT

      The study of the relationship of intelligence and delinquency began with the early 19th century neo-classical criminal justice doctrine that since crime was a rational choice of conduct, mental defectives in common with infants and the insane, were not legally responsible for their actions. While the medical differentiation of mental defectives from the insane was accomplished during the early part of the 19th century, it was not until the late 19th century that scientific standards were established for the measurement of degrees of mental ability and for the determination of mental defect, despite man's observation since time immemorial of the individual variability in mental ability. These were tests for general intelligence, the product of research by a whole school of psychologists, but attributable directly to the researches of Alfred Binet, of France.

    • Permalink for 'Cultural Aspects of Criminal Responsibility'

      Cultural Aspects of Criminal Responsibility

      Posted: October 28th, 2013, 9:49am CDT

      The classical theory of jurisprudence that criminal responsibility is a matter of knowing right from wrong had its origin in a simpler society in which it was possible for an individual to be, in the words of Tarde, "identical with his culture." Cultures were relatively consistent in their values, and the monolithic pressures of relatively uniform culture values concealed the fact to the philosopher that human behavior was no rational outcome of the awareness of right and wrong conduct, but a product of an equilibrium between the individual and his society, in which the struggle for individual and group survival determined means to ends.

    • Permalink for 'What is Wrong with American Prisons and Jails'

      What is Wrong with American Prisons and Jails

      Posted: October 28th, 2013, 9:49am CDT

      The faults of American prisons and jails are not to be laid at the door of any single group, neither of prison architects, administrators, correction officers, nor of the agents of criminal justice, but of the entire structure of public crime control, which is content to deal with society's manifold problems of economic, social and human relations largely in terms of punishment. Despite its lip service to theories of social control by education, American penology stands immobilized today with one foot in the road of rehabilitation and the other in the road of punishment, and here, to my mind, lies our major dilemma and problem.

    • Permalink for 'Reason, Contract, and Law in Labor Relations'

      Reason, Contract, and Law in Labor Relations

      Posted: October 28th, 2013, 9:49am CDT

      HOLMES did not have much occasion as judge to deal with the organization of labor and collective bargaining. But when he did, he stated what he called "the less popular view of the law." To Holmes, our system of free enterprise and democratic government required the state, subject to the limitations of public order, to permit workers to organize and to extend their organization for the purpose of strengthening their bargaining position in the struggle for a better share in return for their services. Their shares were to be determined by the parties to the struggle, not by the state; and the state should not interfere so as to make the struggle unequal. Thus, when dealing with picketing to enforce a wage demand, he said in 1896: One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.

    • Permalink for 'Measurement of Crime in the United States'

      Measurement of Crime in the United States

      Posted: October 28th, 2013, 9:49am CDT

      Crime is by its very nature not easily measureable, being subject to concealment and nomeporting- concealment by victims and nonreporting by authorities-and, as a result, the reported statistics of crime are ordinarily far short of the full volume and range of offenses. This situation holds true for the United States, in which there is as yet no comprehensive, co-ordinated body of national crime statistics, and whose reported crime statistics, compiled by a variety of agencies, fail to provide an accurate statistical base for the analysis of the volume, categories, and trends of crime in the nation.

    • Permalink for 'Critical Legal Theory Today'

      Critical Legal Theory Today

      Posted: October 26th, 2013, 1:53pm CDT

      This essay, written for a book on jurisprudence in America today, asks what the critical tradition in American jurisprudence means today in the light of the events of the past 30 years.

      Critical theories ask how law legitimates power in both senses of the word: how it shapes, channels and restrains power and how it mystifies, disguises, and apologizes for it. In addition, a critical theory studies how the very acts of making, interpreting and applying law produce and proliferate ever new forms of power, both just and unjust.

      Critical theory features an ambivalent conception of law rather than a pejorative conception: it recognizes law's partial but incomplete autonomy from other forms of power in social life. It sees both law's limitations in the face of power and its possibilities as a means of articulating ideals of human association, channeling and restraining arbitrary power and preventing its most serious injustices.

      Critical theory of law looks different today than it appeared thirty years ago because the world itself looks very different. In the world of the 1970s, critical theory pointed out how law failed when it was not supported by a robust politics; in doing so it deemphasized and marginalized positive features of law and legal culture implicit in an ambivalent conception. But in a world of executive arrogance, authoritarian posturing, and blatant disregard for rule of law values, recognizing those positive elements should also be part of a critical account of law. Critical scholars have prided themselves on their deconstructive acumen: their ability to elucidate the hidden and marginalized values and assumptions that bodies of legal doctrine deemphasize but on which they secretly depend. We should apply those same deconstructive insights to critical legal theory itself.

    • Permalink for 'The Constitutionality of the Individual Mandate for Health Insurance'

      The Constitutionality of the Individual Mandate for Health Insurance

      Posted: October 26th, 2013, 1:31pm CDT

      Once President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress's powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance.

      The term “individual mandate” is misleading for two reasons. First, the law would not actually require all individuals to purchase insurance. The mandate would not apply to dependents, persons receiving Medicare or Medicaid, military families, persons living overseas, persons with religious objections, or persons who already get health insurance from their employers under a qualified plan.

      Second, it is not actually a mandate. It is a tax, which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5 on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax” — a tax on transactions or events — or a “penalty tax” — a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan.

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