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Columbia Law School

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Full-Text Articles in Health Law and Policy

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger Jan 2009

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger

Faculty Scholarship

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health ...


Surrogacy And The Politics Of Commodification, Elizabeth S. Scott Jan 2009

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.

This mundane story of the legislative process in action stands in sharp contrast to the political tale of ...


Integrating Accommodation, Elizabeth F. Emens Jan 2008

Integrating Accommodation, Elizabeth F. Emens

Faculty Scholarship

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of diverse groups ...


Surrogacy And The Politics Of Commodification, Elizabeth S. Scott Jan 2008

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

This essay examines the changing social and political meaning of surrogacy contracts over the twenty years since this issue first attracted public attention in the context of the Baby M case in the 1980s. In the protracted course of the Baby M litigation, surrogacy was effectively framed as illegitimate commodification - baby selling and the exploitation of women. This framing can be attributed to a moral panic generated by the media, politicians and a coalition of interest groups opposing surrogacy - primarily feminists and religious conservatives. The framing of surrogacy as commodification had far reaching effects on legal regulation. In the post-Baby ...


Seeing And Believing: Mandatory Ultrasound And The Path To A Protected Choice, Carol Sanger Jan 2008

Seeing And Believing: Mandatory Ultrasound And The Path To A Protected Choice, Carol Sanger

Faculty Scholarship

Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus.The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or ...


An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt Jan 2007

An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt

Faculty Scholarship

Previous research overwhelmingly shows that incarceration led to lower rates of violent crime during the 1990s, but finds no evidence of an effect prior to 1991. This raises what Steven Levitt calls “a real puzzle.” This study offers the solution to that puzzle: the fatal error with prior research is that it used exclusively rates of imprisonment, rather than a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel data regressions over the period 1934-2001, and controlling for demographic, economic, and criminal justice variables, this study finds a large, robust, and statistically significant relationship between aggregated ...


International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm Jan 2007

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men ...


Abortion, Equality, And Administrative Regulation, Gillian E. Metzger Jan 2007

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

Abortion and equality are a common pairing; courts as well as legal scholars have noted the importance of abortion and a woman's ability to control whether and when she has children to her ability to participate fully and equally in society. Abortion and administrative regulation, on the other hand, are a more unusual combination. Most restrictions on abortion are legislatively imposed, while guarantees of reproductive freedom are constitutionally derived, so administrative law does not frequently figure in debates about access to abortion.


Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger Jan 2007

Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger

Faculty Scholarship

In this Essay, I want to explore the Baby M case from a different, less philosophical perspective. The question I pose is simply this: how did the Sterns and the Whiteheads find one another in the first place? After all, apart from their New Jersey location (and a shared fondness for Bruce Springsteen), the two couples had little in common. Mary Beth was a high school dropout; Betsy had a Ph.D. and M.D. from the University of Michigan. Rick was a Vietnam vet fighting an ongoing battle with unemployment and alcoholism; Bill led what close friends called "a ...


Shape Stops Story, Elizabeth F. Emens Jan 2007

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the ...


Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger Jan 2007

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.


The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens Jan 2006

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional ...


Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger Jan 2006

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use ...


From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard E. Harcourt Jan 2006

From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard E. Harcourt

Faculty Scholarship

The incarceration explosion of the late twentieth century set off a storm of longitudinal research on the relationship between rates of imprisonment and crime, unemployment, education, and other social indicators. Those studies, however, are fundamentally flawed because they fail to measure confinement properly. They rely on imprisonment data only, and ignore historical rates of mental hospitalization. With the exception of a discrete literature on the interdependence of the mental hospital and prison populations and some studies on the explanations for the prison expansion, none of the empirical work related to the incarceration explosion – or for that matter, older research on ...


The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens Jan 2006

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as ...


Abortion, Equality, And Administrative Regulation, Gillian E. Metzger Jan 2006

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

This symposium essay argues that administrative regulation of abortion and reproductive rights deserve closer study. Administrative regulation of abortion is overwhelmingly health regulation; the focus is on abortion as a medical procedure, and the government's only stated interest is protecting the health of women obtaining abortions. Such regulation is becoming increasingly common, and is worthy of greater attention on that ground alone. But in addition, and of particular relevance to this symposium on reproductive rights and equality, administrative abortion regulation demonstrates the difficulty in successfully challenging abortion restrictions as unconstitutional gender discrimination. Given general medical agreement that early abortions ...


Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr. Jan 2005

Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr.

Faculty Scholarship

Over a quarter of a century ago, Judge Henry Friendly coined the term "fraud by hindsight" in upholding the dismissal of a proposed securities class action. As he explained, it was too simple to look backward with full knowledge of actual events and allege what should have been earlier disclosed by a public corporation in its Security and Exchange Commission (SEC) filings. Because hindsight has twenty/twenty vision, plaintiffs could not fairly "seize [] upon disclosures" in later reports, he ruled, to show what defendants should have disclosed earlier.

Today, a parallel concept – "causation by presumption" – is before the Supreme Court ...


The Bustle Of Horses On A Ship: Drug Control In New York City Public Housing, Jeffrey Fagan, Garth Davies, Jan Holland, Tamara Dumanovsky Jan 2005

The Bustle Of Horses On A Ship: Drug Control In New York City Public Housing, Jeffrey Fagan, Garth Davies, Jan Holland, Tamara Dumanovsky

Faculty Scholarship

For decades, violence, drugs and public housing have been closely linked in political culture and popular imagination. In 1990, the Department of Housing and Urban Development (HUD) made funds available to public housing authorities to combat drug and crime problems. This program, the Drug Elimination Program (DEP) combined several strategies under one administrative umbrella: police enforcement, drug treatment, drug prevention, youth and gang outreach, community organizing, integrated health and social service agencies, and tenant mobilization projects. In New York, the Housing Authority spent $165 million on DEP in its 330 public housing sites between 1990 and 1996. Yet there has ...


A Defense Of Paid Family Leave, Gillian Lester Jan 2005

A Defense Of Paid Family Leave, Gillian Lester

Faculty Scholarship

The problem of combining work and family life is perhaps the central challenge for the contemporary American family. In this Article, I evaluate and defend government provision of paid family leave, a benefit that would allow workers to take compensated time off from work for purposes of family caregiving.

A legal intervention in the arena of work-family accommodation can only build on some prior normative understanding of the family, and embedded within that, contested value choices about women's identities and entitlements in workplace, family, and society. I am not the first legal scholar to advocate paid family leave of ...


Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger Jan 2004

Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger

Faculty Scholarship

Thirty-four US states currently require pregnant minors either to notify their parents or get their consent before having a legal abortion. The Supreme Court has upheld the constitutionality of theses statutes provided that minors are also given an alternative mechanism for abortion approval that does not involve parents. The mechanism used is the 'judicial bypass hearing' at which minors persuade judges that they are mature and informed enough to make the abortion decision themselves. While most minors receive judicial approval, the hearings intrude into the most personal aspects of a young woman's life. The hearings, while formally civil in ...


The New Censorship: Institutional Review Boards, Philip A. Hamburger Jan 2004

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?


Divorcing Marriage From Procreation – Goodridge V. Department Of Public Health Case, Jamal Greene Jan 2004

Divorcing Marriage From Procreation – Goodridge V. Department Of Public Health Case, Jamal Greene

Faculty Scholarship

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process ...


Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard Jan 2003

Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes were enacted, or at least spurred along, in direct response to disasters. The Federal Water Pollution Control Act of 1972 followed from the Santa Barbara Oil Spill; the Emergency Planning and Community Right-to-Know Act (EPCRA) resulted from the chemical gas disaster in Bhopal, India; the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was sparked by the Love Canal incident; and the Oil Pollution Acte was a reaction to the Exxon Valdez oil spill.

The terrorist attacks of September 11, 2001 have led to the Homeland Security Act and to several other enactments. The collapse of the ...


Privatization As Delegation, Gillian E. Metzger Jan 2003

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of ...


New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman Jan 2002

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of ...


Unemployment Insurance And Wealth Redistribution, Gillian Lester Jan 2001

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do ...


Drug Treatment Courts And Emergent Experimental Government, Michael C. Dorf, Charles F. Sabel Jan 2000

Drug Treatment Courts And Emergent Experimental Government, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and ...


Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg Jan 1998

Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg

Faculty Scholarship

The "tragedy of the commons" metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an "anticommons" in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.


Is There A Future For Future Claimants After Amchem Products, Inc. V. Windsor?, Alex Raskolnikov Jan 1998

Is There A Future For Future Claimants After Amchem Products, Inc. V. Windsor?, Alex Raskolnikov

Faculty Scholarship

In September 1990, the Chief Justice of the U.S. Supreme Court appointed an Ad Hoc Committee on Asbestos Litigation in response to what was widely perceived as a "'failure of the federal court system to perform one of its vital roles in our society.'" Less than a year later, the Judicial Panel on Multidistrict Litigation transferred all untried asbestos cases to the eastern district of Pennsylvania for pretrial proceedings. In January 1993, these proceedings produced a global settlement class action of historic proportions, which the district court eventually approved in August 1994. In May 1996, in Georgine v. Amchem ...


Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman Jan 1993

Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman

Faculty Scholarship

The United States does not have a system for compensating the victims of illness and injury; it has a set of different institutions that provide compensation. We rely on both tort law and giant programs of public and private insurance to compensate the victims of illness and injury. These institutions perform related functions, but the relationships among them are far from coherent. Indeed, the institutions sometimes work at cross-purposes, compensating some victims excessively and others not at all.