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Back Issues and Articles
Back Issues and Articles

Table of Contents
Table Of Contents
AJLM - [PDF] (Free Download)
American Journal of Law & Medicine Volume 39, Numbers 4 * 2013. Articles 497 - The Use and Misuse of Biomedical Data: Is Bigger Really Better? -Sharona Hoffman & Andy Podgurski 539 - The Individual Mandate as Healthcare Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius - Abigail R. Moncrieff 573 - Beyond Abortion: Why the Personhood Movement Implicates Reproductive Choice - Jonathan F. Will 617 - A Comprehensive Strategy to Overhaul FDA Authority for Misleading Food Labels. - Jennifer L. Pomeranz Notes and Comments 648 - Evaluating New Hampshire’s First-In-The-Nation "Early Offer" Alternative to Medical Malpractice Litigation - John W. Masland 671 - Closing the Gaps and Loopholes: Analyzing Tax Exemption of Non-Profit Hospital Joint Ventures After the Affordable Care Act - Shirley S. Pan 689 - Recent Case Developments
Articles
The Use and Misuse of Biomedical Data: Is Bigger Really Better?
Sharona Hoffman and Andy Podgurski - [PDF]

Very large biomedical research databases, containing electronic health records (EHR) and genomic data from millions of patients, have been heralded recently for their potential to accelerate scientific discovery and produce dramatic improvements in medical treatments. Research enabled by these databases may also lead to profound changes in law, regulation, social policy, and even litigation strategies. Yet, is "big data" necessarily better data?
The Individual Mandate as Healthcare Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius
Abigail R. Moncrieff - [PDF]

There was an argument that the Obama Administration's lawyers could have made-but didn't-in defending Obamacare's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would done a better job than the Obama Administration's of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative Justices' primary concerns with upholding the mandate. This Article lays out this forgone defense of the individual mandate.
Beyond Abortion: Why the Personhood Movement Implicates Reproductive Choice
Jonathan F. Will - [PDF]

In 2008, an amendment was proposed to the Colorado Constitution that sought to attach the rights and protections associated with legal "personhood" to any human being from the moment of fertilization. Although the initiative was defeated, it sparked a nation-wide Personhood Movement that has spurred similar efforts at the federal level and in over a dozen states. Personhood advocates choose terms like "fertilization," or phrases such as "human being at any stage of development," to identify the "person"-defining moment in the reproductive process, and these designations have profound implications for reproductive choice. Proponents are outspoken in their desire to outlaw abortion, but they are less transparent about their intent with respect to other aspects of reproductive choice, such as contraception and infertility treatments.
A Comprehensive Strategy to Overhaul FDA Authority for Misleading Food Labels
Jennifer L. Pomeranz - [PDF]

The modern food environment is considered a primary driver of obesity and other nutrition-related chronic diseases. A significant contribution to this environment is the proliferation of claims on food packaging that provides a misleading picture of a product;s healthfulness. The Food and Drug Administration (FDA) is the agency responsible for food labels but it lacks the regulatory authority and adequate resources to address the majority of questionable labeling practices. The FDA's current system of enforcement is thus essentially based on voluntary compliance and consumer- and manufacturer-initiated litigation has not successfully filled the regulatory gap. This manuscript reviews the current state of food labeling claims and the FDA's inadequate authority over misbranded food products. It analyzes competing views on regulatory compliance strategies and argues that a regulatory overhaul consistent with the best science and the First Amendment is necessary. With increased resources and authority, the FDA can meet current public health challenges and adequately ensure that labels are clear and consumers are properly informed and protected.
Recent Court Decisions
Recent Case Developments - Oklahoma Establishes Standing to Challenge the Affordable Care Act: District Court Says IRS Rule May Injure Oklahoma as an Employer
Tanya Jane Beroukhim - [PDF]

Oklahoma ex. rel. Pruitt v. Sebelius - Judge Ronald A. White from the Eastern District of Oklahoma dismissed two parts of Oklahoma’s challenge to the Affordable Care Act (ACA), but found that the State did have standing to pursue three others, including the charge that so-called "employer mandate" penalties cannot be enforced in states that decline to create their own health insurance exchanges.
Recent Case Developments - Federal Appellate Court Holds that a For-Profit Corporation Can Challenge the Contraception Mandate under the RFRA
Jeremy Thomas Harbaugh - [PDF]

Hobby Lobby Stores, Inc. v. Sebelius - On the eve of the U.S. Department of Health and Human Services' (HHS) final rules concerning the Patient Protection and Affordable Care Act's contraception mandate (the "Mandate"), the Tenth Circuit Court of Appeals placed Hobby Lobby Stores, Inc. and Mardel, Inc. within reach of a preliminary injunction against the Mandate. In a five-to-three decision, the Tenth Circuit became the first federal court of appeals considering a challenge to the Mandate to hold that a corporation is a "person" under the Religious Freedom Restoration Act (RFRA). On an expedited remand, the district court granted Hobby Lobby and Mardel a preliminary injunction barring the Mandate's enforcement until the Supreme Court completes its review of the case.
Wisconsin Court Enjoins Enforcement of Admitting Privileges Requirement for Abortion Providers
Gillian Stoddard Leatherberry - [PDF]

Planned Parenthood of Wisconsin v. Van Hollen - The Federal District Court for the Western District of Wisconsin enjoined enforcement of a law that would require abortion providers to have admitting privileges at a hospital within thirty miles of their clinics, stating that the law was likely unconstitutional. The injunction is currently pending review by the Seventh Circuit Court of Appeals.