To Tell or Not to Tell: Should Researchers Contact Anonymous Donors to Help Them?

By Cansu Canca

A recent New York Times article drew attention to an issue with increasing importance as technology develops. Gene samples collected under conditions of anonymity reveal more and more information that may be of crucial importance for the subjects or their relatives. Researchers feel a moral obligation to disclose these important findings, which may even be life-saving, to the subjects. Yet, the anonymity clause in the consent forms prevents them from doing so.

Whether or not researchers can or must disclose the information in spite of the anonymity clause mainly turns on two issues: the scope of the informed consent and the reach of the obligation for beneficence.

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Call for Applications – Yale Summer Institute in Bioethics

Announcing Yale University Summer Institute in Bioethics
June 3-July 26, 2013
New Haven, Connecticut

Yale’s Interdisciplinary Center for Bioethics hosts an intensive Summer Institute for U.S. and international participants. The Institute is an 8-week immersion consisting of lectures, seminars, and research exploring bioethical concerns relating to medicine, law, religion, public health, animal rights, and the environment.

Application deadline for U.S. applicants: January 15, 2013, International students encouraged to apply by November 30.

Tuition is $1,400 (undergraduates), $2,000 (law students, medical students, other graduate students and post-doctoral fellows), $3,000 (professionals). Housing is available within walking distance for an additional cost. Course credit is available.

For further information, please see or contact Carol Pollard at or (203) 432-6188


Congratulations to the 2012 Health Law Scholars!

This past weekend was the eleventh annual Health Law Scholars Workshop, and I wanted to take a minute to congratulate the 2012 Scholars: Alena Allen (Memphis), Leo Beletsky (Northeastern), Christina Ho (Rutgers-Newark), and Lindsay Wiley (American).  Each scholar had two hours dedicated to a discussion of their work, with expert reviewers including Rebecca Dresser (Wash U), Elizabeth Weeks Leonard (Georgia), Kevin Outterson (Boston University), Ted Ruger (Penn), and Rob Schwartz (New Mexico/Hastings), along with the health law faculty at the Center for Health Law Studies, Saint Louis University.  The Workshop is sponsored by the American Society of Law, Medicine & Ethics and SLU’s Center for Health Law Studies, and scholars are selected by a health law committee through blind peer review.  To date there have been 44 scholars, including many contributors to Bill of Health.

Upcoming Event – The Valuation of Life and Health in Government Policies

Wednesday, September 19, 2012
Harvard Kennedy School
Belfer Center, Room 1

Jonathan Wolff will be discussing the valuation of life and health in government policies.  Free and open to the public.  Stop by if you’re in Cambridge!

(And don’t forget about Michael Sandel’s talk, “What Money Can’t Buy: The Moral Limits of Markets” – which is unfortunately at a conflicting time at the law school. Take your pick!)

A Slap-Down to Libertarian Thinking in Health Care

By Vickie J. Williams

On Sept. 14, the United States District Court for the Eastern District of Virginia delivered a slap-down to a case challenging Virginia’s Certificate of Public Need (COPN) law, dismissing the case on all four of the constitutional theories raised in the case.

In Colon Health Centers of America v. Hazel (Subscription required), two health care providers who wanted to offer imaging services in Virginia challenged Virginia’s COPN law, claiming it violates the Privileges or Immunities, Due Process, and Equal Protection Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause.  The plaintiffs apparently sought to turn back the clock on judicial interpretations of these provisions at least 75 years, to the time when substantive due process reigned and the market was the unfettered king of commerce (think Lochner v. New York), and courts second-guessed legislatures on economic and social policy, The plaintiffs even acknowledged in their briefing on the motion to dismiss that their challenge under the Privileges or Immunities Clause was not in accordance with settled law, which has held since 1873 (in The Slaughter-House Cases)  that the right to earn a living unburdened by state police power legislation is not one of the privileges or immunities guaranteed by the Fourteenth Amendment.   They simply wanted to preserve the issue for appeal.

The court, predictably and in accordance with well-settled precedent, dismissed all of these claims.  But one of the interesting things that appears in the decision is the reiteration of the standard justification for Certificate of Need (CON) programs, which currently exist in 36 states.  The court states that CON programs “correct the market” for expensive health-care services.  We generally acknowledge that there is a need to “correct the market” in health-care through the retention of CON laws in most states by the legislatures. Yet the majority of the United States Supreme Court looked upon this idea with great suspicion in the Affordable Care Act case; failing to buy the argument that the health-care and health-insurance markets were tied together (or were a single market) and that there were major distortions in the national market that could be corrected via economic legislation under the Commerce Clause.  Why the difference?  Are we heading for another era where the courts impose a particular economic view of the world on elected representatives?

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The Central States Law Schools Association 2012 Scholarship Conference

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at by September 22, 2012.  Any late submissions will be considered on a space available basis only.

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On Waste

By Leslie Francis

“Waste” (according to the Oxford dictionaries online): to use or expend carelessly, extravagantly, or to no purpose; to become progressively weaker and more emaciated; to kill (North American usage), to devastate or ruin; eliminated or discarded material; unwanted or unusable material; a large area of barren, typically uninhabited land; damage to an estate caused by neglect.  We hear a great deal about “waste” as a contributor to costs of health care in the US, but it is not always clear what sense of “waste” any particular commentator has in mind. Consider three news stories within the past week.

First, the Institute of Medicine issued a report calculating, in the description of the NY Times report, that 30% of health care expenditures in the US–some $750 billion annually–are “waste.” The Report, Best Care at Lower Cost: The Path to Continuously Learning Health Care in America (Sept. 6, 2012), begins with an epigraph from Goethe:  “Knowing is not enough; we must apply.  Willing is not enough; we must do.” It defends a “learning healthcare system,” a system that dramatically enhances the knowledge base used for guidance of care.  Such a system would engage patients, re-align incentives, and continually improve care in light of the best available evidence.  The report demonstrates clearly that there are many ways in which US health care could do better, spending less, avoiding errors, and improving care in line with patients’ preferences.  But waste?–perhaps, in the sense of careless, extravagant, or purposeless expenditure.  Waste in the sense of outright fraud is estimated to contribute only $75 billion–10%–of the $750 billion in excess expenditures.  The only lower category is “missed prevention opportunities” ($55 billion) and the highest category (at $210 billion) is “unnecessary services” (use beyond levels established by evidence, discretionary use beyond benchmarks, and unnecessary choice of higher-cost services.  Insurance inefficiencies, at $190 million, are the next highest culprit identified by the IOM.

Second, the Dartmouth Atlas just published a study in JAMA analyzing the cost savings associated with accountable care organizations.  Although cost savings overall were estimated to be “modest,” for one group of beneficiaries, those dually eligible for both Medicaid and Medicare, savings were significant.  See Colla et al., Spending Differences Associated with the Medicare Physician Group Practice Demonstration (Sept. 12, 2012). Neither the article nor the accompanying press release use the term “waste”–but interestingly several news clips featuring it showed up in a lexis search using the terms “Dartmouth and accountable and waste” . . .

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Law Professors Organize

By Scott Burris

Over the past fifty years, law has become an important tool for promoting public health – and a site of dramatic social and political contests.  Public health law has been an integral part of “great achievements” in public health that have saved, or enhanced, millions of lives. Increasingly, however, the public health interventions – and the legal theories and values they stand on – have been under steady, sustained and systematic attack.   Further progress is imperiled, and past gains may be rolled back.

Over the Summer, Wendy Parmet and Leo Beletsky of Northeastern University convened a one-day workshop in Boston, called Advancing Public Health through the Law: The Role of Legal Academics.  A lot of smart people in and out of legal academia participated, and it did not take long to get a consensus  that legal academics, alone and in partnership with practitioners in law and public health, need to be more effective and better coordinated in our work.  Part of this has to do with better understanding the forces lined up against effective health laws, and there was enthusiasm for the idea of moving forward on a coordinated strategy to increase our influence and effectiveness as public health law scholars and advocates.

It is vital to be strategic in the face of well-funded and well-organized political efforts to turn back interventions that can save lives. But our long-term success also requires some looking inward.  As people working in public health, we have to ask whether our division into unconnected silos – er, I mean, pillars of excellence – is sustainable. Are tobacco advocates, and harm reductionists, and obesity fighters cooperating, or competing?  As a broad movement, are we effectively focusing our limited resources, or allowing ourselves to be divided and conquered?  Are we right to assume that the public trusts us and accepts our mission as legitimate?  Is our language, our framing, getting tired?

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HLS Health Law Policy Workshop – Professor Nick Bagley on Physician Bureaucrats: Why Medicare Reform Hasn’t Worked

The Petrie-Flom Center at Harvard Law School is pleased to announce this year’s Health Law Policy, Biotechnology and Bioethics Workshop. We’re delighted again to welcome a stellar lineup of leading researchers and opinion-makers in fields at the intersection of health and law.  Professors Einer Elhauge and Glenn Cohen lead the 2012-13 workshop series.

The workshop’s next presenter is Nick Bagley, Assistant Professor of Law at the University of Michigan Law School.  He will be presenting his paper, “Physician Bureaucrats: Why Medicare Reform Hasn’t Worked,” on Monday, September 24th.  A PDF of the paper is available here.

Workshops are held on selected Monday evenings, from 5-7 pm in Hauser Hall, room 105.  The schedule for Fall 2012 can be found below.  Workshops are open to the public and copies of papers will generally be posted a week in advance on the Petrie-Flom Website:

Announcement – Nova Law Review Openings

The Nova Law Review has openings in two upcoming issues and invites submissions of essays or articles. The first book with openings is the general book of the Law Review, for which the Law Review is seeking articles on any topic to fill a few holes.

The second book is a symposium issue for which the Law Review is seeking additional articles illustrating the intersection between the law and issues impacting veterans.  The Shepard Broad Law Center at Nova Southeastern University is hosting a symposium titled Wounds of War:  Meeting the Needs of Active Duty Military Personnel and Veterans with Post-Traumatic Stress Disorder on February 1, 2013.  The book is intended to be a special interdisciplinary issue providing a forum for discourse between scholars and practitioners to discuss emerging issues in the field of veterans’ affairs.  Potential topics may include, but are not limited to, the following:  veterans experiencing post traumatic stress disorder, veterans’ courts as therapeutic jurisprudence, any disability treatment post-active duty, any mental therapy treatment pre- and post-duty, the psychological effects of disabilities within the military and a military member’s family, philosophical ideas on how to improve the medical and psychological treatment of active duty military or veterans, etc.

Authors are invited to submit manuscripts of no more than 50 pages including footnotes for either book.  Shorter pieces are welcome. Email submissions are preferred; the subject line should include the words “General Book” for submissions for that book and the words “VA Symposium” for submissions for that book.  Each submission should include a cover letter and a C.V. Please submit all materials by November 1, 2012 to Raul Valero, Editor-in-Chief, at or Rachel Bausch, Lead Articles Editor, at

[cross-posted at HealthLawProf Blog]