4/10 Book Launch: The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children

Thursday, April 10, 2014, 12:00pm

Wasserstein Hall 2019A, Harvard Law School, 1585 Massachusetts Ave.

Please join us for the launch of Professor Ross E. Cheit‘s new book The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children (Oxford University Press, April 2014). It has become widely accepted that a series of high-profile child sexual abuse cases from the 1980s and early 1990s were “witch hunts.” That view first took hold in the media, then spread to the courts and academia. But purveyors of the witch-hunt narrative never did the hard work of examining court records in the many cases that reached the courts throughout the nation. Drawing on fifteen years of original trial research into these child sex abuse cases, Cheit challenges the accuracy of the narrative. The launch event will feature panel discussion including:

  • Ross E. Cheit, Professor of Political Science and Public Policy, Brown University
  • Jeannie Suk, Professor of Law, Harvard Law School
  • Alan A. Stone, MD, Touroff-Glueck Professor of Law and Psychiatry, Harvard Law School

This event is free and open to the public.

For questions, contact petrie-flom@law.harvard.edu or 617-496-4662.

Twitter Round Up

This week’s twitter round up features a variety of topics from our contributors, from discussions about health care spending and the Affordable Care Act to articles about environmental poisoning of soldiers in Iraq.

  • Amitabh Chandra tweeted that “Healthcare spending growth hits a 10yr high… so much for ‘ACA is bending the cost curve’” and shared an article from USA Today.
  • Frank Pasquale shared a blog entry by Larry Backer about Pennsylvania State University students’ worries about the rise of health care costs.
  • I. Glenn Cohen shared a link to an article in The New York Times entitled “‘Environmental Poisoning’ of Iraq Is Claimed” and states that many veterans suffer from environmental poisoning while the “IOM [is] not sure.”
  • Kate Greenwood retweeted Austin Frakt and an article from The Incidental Economist about the negative impact of the insurance market before the implementation of the Affordable Care Act on entrepreneurship.
  • Stephen Latham tweeted a link to his blog reporting on the recent announcement of the Public Health Committee of the Connecticut Legislature that it does not plan to vote on a bill addressing “Aid-In-Dying” or physician-assisted suicide despite “61% public support for the bill.”

Expedited FDA Approval for Breakthrough Therapies: Promises and Pitfalls

By Michael Young

In 2012, the FDA introduced a novel pathway for expedited review of breakthrough therapies. The ‘breakthrough-drug’ designation was carved out by the Food and Drug Administration Safety and Innovation Act (FDASIA), which provided for expedited development and review of any drug “intended, alone or in combination with 1 or more other drugs, to treat a serious or life-threatening disease or condition and preliminary clinical evidence indicates that the drug may demonstrate substantial improvement over existing therapies on 1 or more clinically significant endpoints, such as substantial treatment effects observed early in clinical development.”  This pathway added to a variety of other accelerated FDA approval programs aimed at improving access to innovative, safer, or more effective therapies for serious medical conditions.

In a recent New England Journal of Medicine article, Jonathan Darrow, Jerry Avorn and Aaron Kesselheim examine the clinical consequences and ethical dimensions of the breakthrough-drug category, and raise a variety of vital questions about its implications for patients.

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NEJM Features Discussion of ACA Delays

By Jeremy Kreisberg

The New England Journal of Medicine features two excellent articles discussing the legality of the Obama administration’s various delays of provisions of the ACA.  Unlike a great deal of the debate over this issue, these articles are nuanced and measured, and I highly recommend them.

Nicholas Bagley, a Professor at the University of Michigan Law School (and the author of a terrific new article in the Harvard Law Review), contends that the delays “appear to exceed the traditional scope of the President’s enforcement discretion.”  He distinguishes the ACA delays from traditional enforcement discretion, such as the discretion to allocate resources in a sensible manner, in part because the ACA delays were made public and therefore served the purpose of encouraging regulated parties to violate statutory requirements.  While Bagley admits that the administration has some support for its delay of the employer mandate in the IRS’s longstanding practice of affording “transition relief” to taxpayers from newly imposed taxes, he notes that transition relief has typically been brief and covered taxes of “marginal importance.”  Finally, Bagley argues that the Obama administration’s ACA delays set a “troubling precedent” for future administrations that may be hostile to the law and desire to use similar levels of “enforcement discretion” to decline to enforce portions of the ACA that are “essential to the proper functioning of the law.”

Timothy Jost, a Professor at Washington and Lee University School of Law, and Simon Lazarus, Senior Counsel at the Constitutional Accountability Center, argue that the ACA delays are not refusals to enforce the law, but rather are unexceptional timing adjustments that Democratic and Republican administrations have historically used when implementing new, complex regulatory schemes.  For recent precedent from the Republican Party, Jost and Lazarus point to the George W. Bush administration’s decisions to delay or limit enforcement of various provisions of the 2003 Medicare Modernization Act.  And while they find no legal issues with the ACA delays as a matter of administrative law under Heckler v. Chaney or constitutional law under the Take Care Clause, they are careful to distinguish the plans of 2012 Republican candidate Mitt Romney to suspend enforcement of (at least certain parts of) the ACA.  Those plans, they write, “would have been the kind of diktat that King George III had imposed on the pre-Revolution colonies and that the framers of the Constitution were intent on denying to the new American presidency.”

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Admissions and Mental Health

By Nathaniel Counts

In our legal system, colleges may not make admissions decisions in order to ameliorate historical (or presumably other) inequalities, but may make decisions that take into account the particular situation of the applicant or that strive to create a diverse student body.  Justice Powell rejected the former two goals in Part IV of his Bakke opinion, which went uncontradicted in the Grutter opinion that followed it and, most recently, the Fisher opinion almost exclusively focused on the diversity justification.  Whether or not it appears in court opinions however, the issue of transformative justice is very much at stake – colleges, as the gatekeeper to many of the high honors and offices of our society, can control the distribution of a set of goods to the rising generation and decide how equally they are distributed among certain groups.  Here we will imagine that transformative justice is indeed the goal of affirmative action.

Colleges have two tools by which they can currently select among students based on disadvantage (historical or otherwise).  First, there is the demographic and socioeconomic information disclosed in the application.  Although these questions are optional, for those students who answer the questions, schools may use these answers as signals for disadvantage and take this into account.  Second, there is the essay questions, which frequently ask about an instance in which the applicant overcame adversity.  Here the applicant can demonstrate the degree of disadvantage experienced or explain some more nuanced disadvantage not revealed in the first part.

These two tools are far from perfect, but let us take our imagining further and envision a world in which colleges could accurately determine disadvantage.  If it decides to take on the latter, mental health may pose an insurmountable problem – individuals with intellectual disabilities may not be able to thrive in the setting offered by the institutions that select them.

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Smoke and Mirrors and Women, Oh My

[Guest post by Katherine L. Record, JD, MPH, MA]

Last week the Supreme Court attracted lots of attention when it heard arguments about whether a corporation can exclude mandatory preventive benefits from its employee health plan, based on a religious objection to certain types of healthcare.  This is a tale as old as time; religion has long been the basis for opposition to reproductive (i.e., women’s) health – including the preventive healthcare now in question, contraception.

Yet this argument has nothing to do with government infringement on the practice of religion.

In fact, the corporation, Hobby Lobby, covered two of the four contraceptive devices in dispute until its lawyers were actually arguing the issue in court, apparently to little detriment to the company’s faith in God.  What’s more, Hobby Lobby’s 401(k) includes more than $73 million invested in the companies that produce these objectionable contraceptives (e.g., intrauterine devices, emergency contraception).

This has not stopped Hobby Lobby from arguing that the Affordable Care Act (ACA) is threatening its freedom, as a corporation, to practice religion.

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Is Medicare’s System for Challenging Coverage Determinations Unintentionally Unfair?

On March 25, Susan Jaffe published a blog post in the New York Times about Medicare’s recent change to cover skilled therapy (e.g. physical therapy, nursing care) where it is “reasonable and necessary” maintain a patient’s condition and to prevent deterioration, even when it is not likely that the patient will improve. Jaffe notes that the revisions will likely have a substantial impact on thousands of Medicare beneficiaries even though the change has been largely unnoticed.

The revision highlights a potential problem with the system in place for challenging Medicare coverage. The revision itself is unremarkable, reflecting what national Medicare policies professed, but what local contractors sometimes ignored. What is remarkable is the time it took for Medicare to make the revision, from when the controversy appeared to when Medicare posted the change in its manuals. This delay is problematic because it reflects a dichotomy in how coverage decisions are challenged and changed under Medicare – due not to medical necessity but to political and financial circumstances beyond patient control.

Constituents can change Medicare coverage policies through two processes. One is through the litigation system. Judges can overturn Medicare coverage decisions after patients have exhausted Medicare’s internal adjudication process. Yet, litigation can take years and judges usually defer to Medicare’s judgment. National Coverage Determinations (NCDs) provide an alternative under which constituents can encourage Medicare to reconsider or overturn a prior coverage decision. NCDs supersede Local Coverage Determinations (LCDs) – coverage decisions that affect a region of the United States. When Medicare determines that the LCDs for a specific technology or service are “inconsistent or conflict with each other to the detriment of Medicare beneficiaries,” Medicare can decide to issue an NCD to provide uniform coverage.

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Liveblog of 4/2 panel on Hot Topics in European Bio-Patent Law, Part IV

By Nicholson Price

Finishing up the event today is Tom Kowalski from Vedder Price, giving a US perspective on section 101 on patentable subject matter.  This post will encompass his presentation and general questions afterward.

Kowalski starts with a brief review of patentable subject matter, and states his view that after Prometheus and Myriad, “the fabric of the patent system has been torn.”  His view is that isolated DNA is a separate chemical entity, and that the Supreme Court simply got it wrong.  Read More

Liveblog of 4/2 panel in European Bio-patent Law, Part III

By Nicholson Price

Third up is Dr. Maaike van der Kooij, discussing medical use claims at the EPO.

In general, methods of medical treatment aren’t patentable under Art. 53(c) of the EPC, but the way around is to claim a relevant product either for medical use (if the substance is known but not medically used (Art. 54(4)) or for a specific medical use (Art. 54(5)).  (From my point of view, this seems like another way that the EPO is trying to address its innovation mandate by working around what appears to be pretty clear language in the EPC, a pattern which we certainly see in the US in both PTO and Federal Circuit practice). Read More