Saint Louis University
Saint Louis University School of Law Research: Scholarship CommonsNot a member yet
3119 research outputs found
Sort by
Editor, Ethical Challenges in Discharge Planning: Stories from Patients
Get PDFThis symposium includes twelve personal narratives from patients and their caregivers who have navigated challenges in planning for discharge from the hospital and transition to care at home, a rehabilitation facility, long-term care facility, or hospice. Three commentaries on these narratives are also included, authored by experts and scholars in the fields of medicine, bioethics, and health policy with particular interest in vulnerable populations. The goal of this symposium is to call attention to the experiences of patients during transitions in care and to enrich discussions of ethical issues in discharge planning
Policies of Exclusion: The Impact of COVID-19 on People with Disabilities
Get PDFCOVID-19 has had a significant impact on marginalized groups and has amplified the social and health inequalities in society, particularly for people with disabilities (PwDs), who are at higher risk of dying from the coronavirus. As such, it is vital that policies and practices include and protect PwDs, yet that is not the case across the United States. In this article, we examine policies related to COVID-19 that have further othered PwDs and that have created practical and theoretical inequity. In looking at public health strategies that are meant to protect the public, we argue that measures such as social distancing guidelines and the use of remote health care have exacerbated the challenges PwDs already face and risk further harm and exclusion for an already marginalized group. In analyzing health facilities’ triage policies—both those that were in existence prior to the pandemic and those that were created in response to it—we assert that these policies can exclude PwDs from receiving care and that these policies are reflective of existing structural and social inequities. We discuss these same inequities derived from a social utility approach in the plans for distributing COVID-19 vaccines, which devalue or erase PwDs from prioritization, despite their increased health risks from the coronavirus. We conclude by offering suggested changes to existing policies that move toward true equity and accessibility for PwDs and the greater community
At a COVID Crossroads: Public Health, Patient Privacy, and Health Information Confidentiality
Get PDFThis essay summarizes and assesses the various bulletins, guidance documents, and notices of enforcement discretion released by the federal Department of Health and Human Services regarding the application of the HIPAA Privacy Rule to the COVID-19 pandemic. Among other topics and actions, these authorities address the application of the HIPAA Privacy Rule to the use and disclosure of protected health information for public health activities, waive the application of certain HIPAA Privacy Rule requirements during the COVID-19 pandemic, and announce enforcement discretion regarding certain covered entities’ non-compliance with particular provisions within the HIPAA Privacy Rule. These authorities overwhelmingly, and appropriately, prioritize the health, safety, and welfare of the public over individual rights to patient privacy and health information confidentiality during the COVID-19 pandemic
The Market as Negotiation
Get PDFOur economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.
This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays in different types of marketplaces. Establishing the concept of negotiation variance, we create a preliminary taxonomy of factors that shape such variance and examine the differences between markets as to the effects that negotiation can have on transactions. In markets with high negotiation variance, parties can use their negotiation effectiveness to get much better deals. Although the law has not generally recognized negotiation’s role in markets explicitly, judges and policymakers have at times taken negotiation variance into account implicitly, making exceptions to standard doctrines to accommodate unbalanced outcomes. The Article examines the doctrines of common-law contract that reflect an understanding of negotiation’s impact, as well as exploring three particular markets where high-variance negotiation has a significant role: lawsuit settlements, corporate control, and employment. These examples show how the law takes negotiation variance into account and illustrates the challenges in developing a response to individual negotiation differences across markets
The Fate of the Public Charge Rule Following a Covid-19 Era
Get PDFWithin two weeks of the new administration, President Biden sought immediate review of the long existing Public Charge Rule and former President Trump\u27s changes to it. In this article, Jacquelyn Sicilia discusses the recent litigation on the Public Charge Final Rule and where it stands today.https://scholarship.law.slu.edu/lawjournalonline/1058/thumbnail.jp
Fallout Avoided? Zoombombing Litigation Update
Get PDFIn this article, Kaitlin Carpenter discusses Zoom’s dark side in a practice called Zoombombing, and also provides an update on the lawsuit addressing this problem.https://scholarship.law.slu.edu/lawjournalonline/1061/thumbnail.jp
Offensive Mark Owners Have an Enforcement Problem
Get PDFIn Iancu v. Brunetti, the Supreme Court held that the Lanham Act 2(a) bars for immoral or scandalous marks are facially unconstitutional viewpoint discrimination, and thus violate a trademark owner’s First Amendment rights. Brunetti, as well as its predecessor, Matal v. Tam, focused entirely on how the government might generate viewpoint discrimination at the point of trademark registration. The Court did not consider whether enforcement of trademarks—via courts of law, Customs and Border Protection, or the International Trade Commission—is government speech, and thus exempt from First Amendment free speech scrutiny. Yet the Court’s seminal holding of Shelley v. Kraemer illustrates that once the judicial enforcement of a private right has been declared a government action, the court then determines what constitutional considerations are at issue. Analogously, enforcement of a mark should be deemed government speech, and the constitutional implications regarding the applicability of the First Amendment must be addressed from this position.
This Author argues that, even if registration triggers First Amendment protections for the mark owner against viewpoint discrimination, the same does not hold true for the enforcement of a mark against alleged infringers. The surprising upshot is that offensive, vulgar, and scandalous marks could be denied enforcement in an infringement action, a Customs seizure, or an International Trade Commission proceeding, because enforcing them through these government actions would constitute government speech and not be subject to First Amendment protections. Moreover, if these enforcement actions of a private citizen’s mark would constitute government speech, then any registration is meaningless if the mark is unenforceable. It would thus make sense for the court to hold that registration of that mark is government speech as well
As the Revolving Door Turns: Government Lawyers Entering or Returning to Private Practice and Conflicts of Interest
Get PDFGovernment lawyers regularly leave public service for private law practice—often through the same revolving door that launched their public careers. The law firms they join or to which they return welcome them because of the experience they gained, and the expertise they developed, while in the government. The challenge for former government lawyers and their law firms is recognizing and managing conflicts of interest that sometimes arise out of lawyers’ government service. To address the special conflict of interest concerns that emerge from the revolving door of government service, the ABA formulated Model Rule 1.11. With a single exception, Model Rule 1.11 displaces other ethics rules that generally govern conflicts of interest in lawyers’ successive representations. In so doing, Model Rule 1.11 attempts to balance the competing interests in play when a matter spans a lawyer’s government service and private practice.
Most conflict of interest controversies involving former government lawyers pivot on the scope of the matter that is alleged to be the source of the conflict, and the degree of the lawyer’s participation in the matter. To a lesser but nonetheless critical extent, former government lawyers’ alleged acquisition of confidential government information also spawns disputes. Whether former government lawyers should be disciplined or disqualified for conflicts of interest tied to their public service always requires case-specific inquiry. Avoiding discipline and disqualification, and further avoiding imputed disqualification of the lawyer’s law firm, requires former government lawyers and their law firms to understand and to be able to navigate the uniqueness of Model Rule 1.11. This article provides a practical guide for doing so
2021: Disciplining Physicians Who Inflict Harm: New Legal Resources for State Medical Board Members
No full textSerious ethical violations among physicians undermine public trust in the healthcare system and cause serious harm to patients. Egregious forms of wrongdoing that direct harm patients, such as sexual abuse, wrongful prescribing of controlled substances, and unnecessary surgeries, are particularly alarming. State medical boards are tasked with protecting the public by ensuring that physicians adhere to ethical guidelines and appropriate standards of care. However, it is unclear why boards sometimes fail to remove seriously offending physicians from practice in a timely manner or what measures would make boards more effective in protecting patients from harmful misconduct.
This conference will present the findings of an innovative Greenwall Foundation funded project that provides solutions to this problem. Working directly with state medical board members and other experts, the researchers have developed a consensus on the most important tools and practices needed to protect the public when physicians are accused of egregious wrongdoing, as well as barriers to adopting those tools and practices. The conference will focus on these findings and invite response to a carefully chosen set of recommendations for state statutory provisions for discussion.https://scholarship.law.slu.edu/jhlpsymposia/1000/thumbnail.jp
From Crisis Springs Opportunity: Using Virtual Learning to Develop More Effective Lawyers
Get PDFThe increase in virtual, distance, and remote learning necessitated by the COVID-19 pandemic has presented new challenges to law school faculty and students. But at the same time, increased virtual interactions provide us with a unique opportunity. In particular, increased virtual interactions allow us to test and stress students’ “virtual intelligence,” a suite of more intangible skills that also promotes lawyer effectiveness. These skills include traditional project management tasks and conventional social engagement, but on a heightened level given the challenges inherent in virtual interactions. Legal employers place these skills at a premium, yet at the same time report that graduating law students traditionally have been ill-equipped in these areas. By heading online, we can break the law school mold and create a more immersive, realistic, and challenging experience for our students—one that will make them more effective lawyers and better equip them for the practice of law