Yearly Archives: 2021

Impacts of Pharmaceutical Capture on Public Health Outcomes

Liza Vertinsky, Pharmaceutical (Re)Capture, 20 Yale J. Health Pol’y L. & Ethics __ (2021).

At the heart of Professor Liza Vertinsky’s excellent article, Pharmaceutical (Re)Capture, lies a persistent paradox: Although the U.S. innovation ecosystem is one of the most sophisticated and advanced in the world, its technological prowess has not resulted in broadly distributed public health benefits. On the contrary, the U.S. experiences some of the highest spending in biomedical innovation, but some of the poorest health outcomes as compared with other developed countries.

Historians of medicine call the belief that the societal path to better health lies in technological interventions a “biomedical approach to health.” This approach has profoundly influenced global and U.S. health care policy in the twenty-first century. An alternative, “sociomedical,” approach looks at expensive, high-technology innovations with a certain degree of skepticism, prioritizing instead broad access to low-cost, low-technology primary health care. Biomedical approaches, however, have eclipsed global and domestic sociomedical practices.1 Continue reading "Impacts of Pharmaceutical Capture on Public Health Outcomes"

Reconceptualizing Constitutional Remedies

In his brilliant new book, The Collapse of Constitutional Remedies, Aziz Huq tells the tale of two eras for constitutional remedies in the US: a mid-century moment in which the Supreme Court created a new, expansive remedial architecture, and a late-century moment of remedial retrenchment. In the mid-twentieth century, Huq notes, the Court developed a “comprehensive” and “robust” four-part remedial architecture, involving injunctions, habeas relief, damages and the exclusion of evidence. (Pp. 87-97.) From the 1970’s onwards, the Court began to hollow out the force of these remedies, by erecting a range of barriers to their availability, including the need to show an “obvious wrong”, various immunity doctrines and evidentiary barriers. (Pp. 5-6, 103-32.)  Huq also notes the way in which this retrenchment has occurred selectively, along two different ‘tracks’1: one track, involving structural challenges based on federalism and separation of powers principles, has largely seen the availability of constitutional remedies hold steady; and another track, involving individuals’ claims to protection from state violence, has witnessed a large-scale retreat. (Pp. 16, 134.)

Huq further notes the immense consequences of this selective retreat: the continued availability of remedies in structural cases has made it harder to advance social state objectives or preserve the infrastructural state, whereas the retreat of remedies in other cases has made it harder to challenge the despotic state. (Pp. 15-16.) In America today, as in the pre and post-Civil War era, the despotic state also bears disproportionately on the poor and racial minorities. Failing to curb the despotic state, therefore, is part of why we see a current crisis of racial injustice and violence in America. Another part is failing to uphold and enable the infrastructural state to enact the programs and regulations necessary to achieve racial and economic justice. (P. 8.) Continue reading "Reconceptualizing Constitutional Remedies"

Compounding Vulnerability: Hospital Emergency Rooms as Sites Of Race- And Class-Based Police Surveillance

Ji Seon Song, Policing the Emergency Room, 134 Harv. L. Rev. 2646 (2021).

At the time of this writing, there is widespread public consciousness of both racial health disparities, owing to the COVID-19 pandemic, and the problems of racialized policing in the United States, owing to a wave of protests of police killings of Black people. In a timely new article, Professor Ji Seon Song masterfully explores the relationship between inequitable access to health care and policing by analyzing whether and how criminal procedure doctrine protects patients in hospital emergency rooms (ERs) from harmful police practices.

Professor Song’s primary field of interest is criminal law, not health law—but that, I suggest, is one of the reasons why health law scholars and others interested in health policy should give it a read. This, an article primarily analyzing a criminal law issue, provides new and valuable insights about primary interests and status relationships in health care. Though debates about the coherency and scope of health law as a field are ongoing, most health law scholars are concerned with a fairly discrete set of primary interests and status relationships. Among these are the unique vulnerability of patients during a therapeutic transition, the duty of care that medical professionals owe to vulnerable patients, and the persistence of inequities in access to health care by race and class. Professor Song touches on each of these interests in her analysis of the criminal procedure doctrine governing police investigations. As someone who seeks to provide valuable insights about the intersection of health and immigration laws to the community of health law scholars, this type of scholarship is of particular interest to me, and I appreciated the opportunity to review this piece and provide feedback to Professor Song before it was published. Continue reading "Compounding Vulnerability: Hospital Emergency Rooms as Sites Of Race- And Class-Based Police Surveillance"

Obstetric Racism and the Limits of Family Law Reform

This year, the law journals at the University of Michigan Law School published a collective joint special issue focusing on racism and the law. One essay included in the volume, selected and edited by the Michigan Journal of Race and the Law, was Colleen Campbell’s Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women. Professor Campbell’s essay concisely describes and explains how, as she puts it, “Black women are simultaneously overmedicalized and medically neglected” in obstetrics. Physicians see Black women as innately high-risk, so that they are overmedicalized by disproportionately common surgical interventions during pregnancy and birth. At the same time, racism that continues to devalue Black lives leads medical professionals to disregard Black women’s choices and agency around their reproductive health. In both cases, the ability of Black women to determine or even consent to their medical treatment is undermined.

Professor Campbell’s project is an ambitious one, as she traces treatment of Black women by the medical establishment in the context of obstetrics from the exploitation of enslaved women to higher rates of Black maternal mortality today, and she ably synthesizes the works of a wide range of scholars and literatures to do so. In the earliest days of “professionalized” gynecology, white male physicians took over a practice that had been largely conducted by women such as midwives. One way that the field became professionalized and masculinized was by greater reliance on surgical procedures. And a key, disturbing part of the development of surgical procedures was surgical experimentation on enslaved women, the most extreme example of medical violence in Campbell’s account. Campbell points to the example of James Marion Sims, considered the father of modern gynecology through his surgical treatment of fistulas, who operated on conscious and unanesthetized enslaved women. Adding insult to unfathomable injury, Sims described enslaved women with no choice or control over what happened to their bodies as happily consenting to these procedures, and relied on the racist belief that Black people did not feel pain the way that white people did to justify not using anesthesia. Continue reading "Obstetric Racism and the Limits of Family Law Reform"

The Timing is Perfect for Revolutionary Feminisms

Brenna Bhandar & Rafeef Ziadah, Revolutionary Feminisms (2020).

This edited collection came to press as many of us around the world “went home”. Spring (Canadian spring, at least) 2020 had become unfamiliarly quiet. There was so little traffic on the streets that I could hear the ice-maker in our fridge on the main floor producing ice even though my bedroom (on the second floor) door was closed.

Despite the quiet, those work-from-home days were chaotic and exhausting. My days were filled with one zoom meeting after another. As the Dean of a Faculty, I found myself making endless and ostensibly urgent and important decisions, only to change those decisions the next day. I imagined someone watching me “at work”. They would have watched a middle-aged woman, hunched over a small Ikea desk in the corner of her bedroom sitting quietly, but staring intensely, at a laptop screen for hours, periodically yelling loudly at the screen. My days were both filled with others and yet isolating and alienating. Continue reading "The Timing is Perfect for Revolutionary Feminisms"

Debunking the Myth of Democratized Algorithms in Criminal Administration

Ngozi Okidegbe, The Democratizing Potential of Algorithms?, 53 Conn. L. Rev. __ (forthcoming, 2021).

Algorithmic risk assessments, offered as a means to improve decision-making by standardizing the prediction of an individual’s future behavior, present myriad challenges in criminal administration. The tools are inscrutable. The tools are discriminatory. What is to be done? One popular solution is public participation in the design and adoption of actuarial risk assessments. Though not a panacea, jurisdictions across the country – from New York City to Sacramento – are passing or considering laws that require public oversight in the adoption of actuarial risk assessments.

In her article, The Democratizing Potential of Algorithms?, forthcoming in the Connecticut Law Review, Ngozi Okidegbe challenges the assumption that these kinds of initiatives can resolve one of the most deep-seated critiques of pretrial algorithms – their racialized effect on marginalized people disproportionately subject to the carceral state. To the contrary, she argues that such efforts threaten to exacerbate the problem. Because her article questions the compatibility of the algorithmic project with racial justice in a novel way, it is a must read for scholars interested in criminal legal reforms. Continue reading "Debunking the Myth of Democratized Algorithms in Criminal Administration"

Recovering Equity

Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. __ (forthcoming, 2022), available at SSRN.

I write to offer three cheers for Getting Into Equity, a rumination on the distinctive manner in which litigants invoke law and equity. To get into law, the authors explain, one asserts a cause of action, rooted in a Roman law conception of redress for a violation of one’s rights. To get into equity, the suitor provides a narrative account of a grievance that raises an equity in her favor. Equity may act in relatively predictable ways, but it remains fundamentally discretionary in the hands of judges or chancellors who have been asked to correct an injustice. The authors persuasively argue that the distinction has survived (if barely) the fusion of law and equity in the Federal Rules of Civil Procedure.

One immediate takeaway (as my students like to say) seems straightforward: judges asked to do equity must conduct a more flexible, less rule-bound assessment of the nature of the grievance and should not insist on codified causes of action. That may suggest that the failure of Congress to create a statutory right to sue in favor of the United States should not prove fatal to its suit for injunctive relief against enforcement of the Texas anti-abortion statute, SB8. Rather, the extraordinary nature of SB8’s enforcement regime and the apparent inadequacy of remedies at law for doctors who face a string of potential bounty-hunter proceedings might justify equitable intervention absent any statutory (or prior precedential) authority. Continue reading "Recovering Equity"

Doing Well While Doing Good: Impact Investing & the Commodification of Marginalization

Cary Martin Shelby, Profiting from Our Pain: Privileged Access to Social Impact Investing, 109 Cal. L. Rev. __ (forthcoming, 2021), available at SSRN.

“Doing well while doing good” has become the mantra for a large segment of investors in today’s capital markets. In the wake of COVID-19, the Black Lives Matter movement, and the increased focus on climate change, many investors today are looking for ways to use their capital to positively impact society and address its various challenges. Responding to this demand, various socially conscious investment vehicles have emerged, such as environmental, social, and governance (ESG) investments, socially responsible investments (SRI), and social impact investing. But as these investments grow in popularity and size, it becomes necessary to question whether they are truly having the positive impact their name suggests.

In Profiting from Our Pain: Privileged Access to Social Impact Investing Professor Cary Martin Shelby explores the underbelly of socially conscious investment, focusing specifically on social impact investing. Social impact investments “seek to positively impact the environment or society at large, while simultaneously yielding a return for the underlying investors.” Because of its express and specific focus on social impact, this type of investing has the greatest potential for generating positive results for targeted communities. Yet, despite the potential benefits of social impact investing, Professor Martin Shelby argues that the public-private divide in U.S. federal securities laws creates opportunities for elite investors to profit at the expense of marginalized communities. This occurs through two interrelated yet distinct ways. Continue reading "Doing Well While Doing Good: Impact Investing & the Commodification of Marginalization"

Tailored Standard Form Contracts and Inequality

Manisha Padi, Contractual Inequality,120 Mich. L. Rev. ___ (forthcoming, 2022), available at SSRN.

Standard form contracts have long been thought to be, well, standard. One size for all. A long and distinguished line of commentary has convincingly explained why mass contracts, like mass products, are standardized, what benefits uniformity brings to business and even to consumers, and why a take-it-or-leave method of negotiating them is inevitable.

But a recent empirical line of scholarship has begun to cast doubt on that idée fixe. Standard form contracts, the new perspective suggests, are uniform in paper but personalized in practice. They are handed equally to all customers, but they merely serve as baseline for what some scholars previously called “tailored forgiveness.” In the shadow of boilerplate contracts, businesses exercise discretion and negotiate with individual parties specific accommodations and other variations from the text. Continue reading "Tailored Standard Form Contracts and Inequality"

What Hath Judicial Minimalism Wrought? Judicial Partisanship, Free Exercise Doctrine, and the Culture Wars

Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. ___ (forthcoming 2022), available at SSRN.

“What God says is best, is best, though all the men in the world are against it.” John Bunyan, Pilgrim’s Progress

Zalman Rothschild has published a wonderful empirical study of patterns of voting by federal appeals court judges and district judges in free exercise cases. A soup-to-nuts feast of data, doctrine, and dilemmas for a jurisprude or, God forbid, a regular American, the Article feeds the intellect, brings cheer to the most cynical legal realists among us, and offers a glimmer of hope to a waiting world wanting to believe—in federal courts. The Article provides evidence of a shift from longstanding relative consensus about free exercise claims to a starkly partisan pattern in judicial choices around these claims. At the extreme, in recent cases involving COVID 19 restrictions, the difference is total. Judges appointed by Republican presidents find discrimination every time. Judges appointed by Democratic presidents judges never do. (P. 3.)

Rothschild’s article arrives at a moment of scholarly ferment. Discussions of the free exercise free-for-all abound. Many parse the mysteries of court doctrine. Others offer one way or another out of a thicket of controversy and vitriol. Rothschild’s merger of a wide base of knowledge and analysis rises to the top, for my money, if you wonder what’s to be done, or if you need to be educated about the latest entanglement of free exercise doctrine with the culture war. Continue reading "What Hath Judicial Minimalism Wrought? Judicial Partisanship, Free Exercise Doctrine, and the Culture Wars"

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