Georgetown Law Journal: O’Neill Symposium Issue
Survival Needs of the World’s Least Healthy People: Toward
a Framework Convention on Global Health
Lawrence O. Gostin, Associate Dean and the Linda D. and Timothy J. O’Neill Professor of Global Health Law
This article searches for solutions to the most perplexing problems in global health—problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world’s population. The article proposes one mechanism that would go a long way toward establishing effective global health governance: a Framework Convention on Global Health.
Global Health Jurisprudence: A Time of Reckoning
David P. Fidler, Professor of Law, Indiana University School of Law—Bloomington
This article discusses the emergence and development of a body of law in global health as public health issues continue to garner attention in national and international affairs. According to the author, the need in public health for knowledge of and skill in law, and a growing recognition of a distinct system or body of laws are features attributing to the development of global health law.
Normative Foundations of Global Health Law
Jennifer Prah Ruger, Assistant Professor, Yale University
This article presents a normative theory of global health law and examines the notion of global health equity in the foundation of global health law. The author argues that achieving global health equity requires a reformation of domestic health law in areas of access and health care infrastructure.
Global Health Care Financing Law: A Useful Concept?
Timothy Stoltzfus Jost, Professor of Law, Washington & Lee University
This article argues that the concept of global health care financing law can “make a modest contribution at the global level to addressing the issues that face health care financing systems.” Health care financing systems’ domestic nature as well as law’s secondary role in health care financing systems’ design, operation, and reform prevents a wider impact.
Change, Human Health and the Post-Cautionary Principle
Lisa Heinzerling, Professor of Law, Georgetown University Law Center
This article proposes a reframing of climate change in public discourse from an environmental threat as a public health threat as it presents the link between climate change and human health. The author argues for using a “post-cautionary principle” acknowledging that climate change has occurred in order to mitigate the serious adverse consequences climate change will affect on human health.
Boston, We Have a Problem: Relational Duties, Regulatory
Duties, and the Widening Gap Between Individual Health Law and
Collective Health Policy
William B. Sage, Vice Provost, The University of Texas at Austin
This article outlines how a relational approach rather than a regulatory approach has impeded health law’s ability to effectively govern the American health care system. The author concludes that the following four areas of health policy - conflicts of interest in biomedical research, managed care and pay-for-performance, health care transparency and education, and the public health - require a more collective regulatory approach to health law.
Critical Examination of the FDA’s Efforts to Preempt Failure-to-Warn
David Kessler, Dean and Vice Chancellor for Medical Affairs, University of California San Francisco and David Vladeck, Professor of Law, Georgetown University Law Center
This article explores the legality and wisdom of the FDA’s effort to persuade courts to find most failure-to-warn claims preempted.
The Erosion of Individual Autonomy in Medical Decisionmaking:
Of the FDA and IRBs
Richard A. Epstein, Professor of Law, University of Chicago
This article questions the usefulness of considering health care law as a separate legal field. Resolving complex problems involves appreciating doctrinal, empirical, and institutional frameworks. The article concludes that excessive regulation creates the greatest difficulties in modern health care.
Health Care Rationing: Inevitable, But Impossible?
Henry J. Aaron, Senior Fellow, The Brookings Institution
This article looks at the growth of health care spending in America and the reasons for such growth. The author explains how a paradox of spending generates benefits far in excess of total cost while current expenditures go to services that are far less than they cost. The author explores the proposed methods of how to curtail spending and proposes how health care could be rationed, but only if information measuring the relative quality of providers is collected.
Can We Get There from Here? Universal Health Insurance
and the Congressional Budget Process
Tim Westmoreland, Visiting Professor of Law, Georgetown University Law Center
Because any proposal for universal health insurance will increase federal spending, how the spending is estimated and the ultimate size of the expenditures will determine whether the plan is politically viable. Two problems are easily identifiable: (1) the budget process favors policies that let sick people die rather than incurring future health costs, and (2) the budget process also favors mandates rather than spending to keep expenses off of the federal books. Sidestepping survivors’ costs by excluding them in the PAYGO process and comparing total national expenditures on health care with national expenditures would ameliorate these problems.
The Legal and Historical Foundations of Patients as
Mark A. Hall, Professor of Law and Public Health, Wake Forest University
This article attempts to resolve the essentialism versus the “law and a horse” view of health care law by determining whether the legal system sees individuals who receive medical care more as patients or consumers. Because normal contractual rules do not apply between patients and providers, this article argues that law regards individuals more as patients than as consumers and that status is implicated in medical law in a way that it is not in contractual law.
Health Law’s Coherence Anxiety
Theodore W. Ruger
This article argues that it is time to deemphasize the quest for “a singular coherence” in health law. Even if the field lacks a central core, the field may still have an identifiable structure and special attributes worthy of study. Somewhat ironically, health law’s mixture of legal forms, its institutional multiplicity, and its interaction with external historical and political pressure - all features that separate it from the classical coherence model - are generalizable features that are worthy of future examination.
Empirical Health Law: The State of the Field
Michelle M. Mello, Associate Professor of Health Policy and Law, Harvard School of Public Health and Kathryn Zeiler, Professor of Law, Georgetown University Law Center
This article surveys the current state of empirical health law (EHL) research. Although EHL research has the potential to alter policy, uneven research quality and poor dissemination among policymakers prevents EHL from having a more significant impact. Researchers may also wish to increase their training, funding, interdisciplinary collaborations, and dissemination efforts to improve policy implementation.
Deconstructing Negligence: The Role of Individual and
System Factors in Causing Medical Injuries
Michelle M. Mello, Associate Professor of Health Policy and Law, Harvard School of Public Health and David M. Studdert, Professor and Federation Fellow, University of Melbourne
This article proposes reframing medical malpractice discussions from an individual-centered framework to a “patient safety” framework. This framework emphasizes how “system failures” lead to injury, defining a “system” as interdependent elements operating to achieve a specific aim. In this model, medical errors should be viewed as malfunctions within the entire system. Reorganizing tort law to expand corporate liability may alleviate some of these problems.
Public Health Surveillance in the 21st Century: Achieving
Population Health Goals while Protecting Individuals’ Privacy
Michael A. Stoto, Professor of Health Services Administration and Population Health, Georgetown University School of Nursing & Health Studies
Historically, public health surveillance has relied on two different surveillance forms: case surveillance and statistical surveillance. Although each one has different objectives, data sources, and methods, recent surveillance programs combine and confuse the two. Consequently, their different ways of balancing individuals’ privacy rights with community welfare has been upset. This article argues that new approaches are needed to resolve the tensions between these two concerns.