I. Glenn Cohen

Professor of Law

Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics

Biography

Prof. Cohen is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Professor Cohen has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues.

He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34), though not the youngest in history.

Prof. Cohen's current projects relate to big data, health information technologies, mobile health, reproduction/reproductive technology, research ethics, organ transplantation, rationing in law and medicine, health policy, FDA law, translational medicine, and to medical tourism – the travel of patients who are residents of one country, the "home country," to another country, the "destination country," for medical treatment.

He is the author of more than 95 articles and chapters and his award-winning work has appeared in leading legal (including the Stanford, Cornell, and Southern California Law Reviews), medical (including the New England Journal of Medicine, JAMA), bioethics (including the American Journal of Bioethics, the Hastings Center Report), scientific (Science, Cell, Nature Reviews Genetics) and public health (the American Journal of Public Health) journals, as well as Op-Eds in the New York Times and Washington Post. Cohen is the author, editor, or co-editor of 9 books. They include:  The Globalization of Health Care: Legal and Ethical Issues (Oxford University Press, 2013, the introduction of which is available here),  Human Subjects Research Regulation: Perspectives on the Future (MIT Press, 2014, co-edited with Holly Lynch, introduction available here), Identified Versus Statistical Lives: An Interdisciplinary Perspective (Oxford University Press, 2015, co-edited with Norman Daniels and Nir Eyal , the introduction of which is available here), FDA in the Twenty-First Century: The Challenges of Regulating Drugs and New Technologies (Columbia University Press, 2015, co-edited with Holly Lynch, the introduction of which is available here), The Oxford Handbook of U.S. Health Care Law (Oxford University Press, 2015-2016, co-edited with William B. Sage and Allison K. Hoffman) and Patients with Passports: Medical Tourism, Law, and Ethics (Oxford University Press, 2014), with three other books in progress.

For his law school teaching he was awarded the HLS Student Government Teaching and Advising Award in 2017. He also sometimes teaches courses at Harvard College and Harvard Medical School. For the public he created the free online Harvard X class Bioethics: The Law, Medicine, and Ethics of Reproductive Technologies and Genetics, which can be accessed at https://www.edx.org/course/bioethics-law-medicine-ethics-harvardx-hls4x , and which was nominated by Harvard for the Japan Prize

Prior to becoming a professor he served as a law clerk to Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and as a lawyer for U.S. Department of Justice, Civil Division, Appellate Staff, where he handled litigation in the Courts of Appeals and (in conjunction with the Solicitor General’s Office) in the U.S. Supreme Court. In his spare time (where he can find any!) he still litigates, having authored an amicus brief in the U.S. Supreme Court for leading gene scientist Eric Lander in Association of Molecular Pathology v. Myriad, concerning whether human genes are patent eligible subject matter, a brief that was extensively discussed by the Justices at oral argument. Most recently he submitted an amicus brief to the U.S. Supreme Court in Whole Women's Health v. Hellerstedt (the Texas abortion case, on behalf of himself, Melissa Murray, and B. Jessie Hill).

Cohen was selected as a Radcliffe Institute Fellow for the 2012-2013 year and by the Greenwall Foundation to receive a Faculty Scholar Award in Bioethics. He is also a Fellow at the Hastings Center, the leading bioethics think tank in the United States. He recently finished his role as one of the key co-investigators on a multi-million Football Players Health Study at Harvard which is committed to improving the health of NFL players (for more on this work click here). He leads the Ethics and Law initiative as part of the multi-million dollar NIH funded Harvard Catalyst | The Harvard Clinical and Translational Science Center program. He is also one of three editors-in-chief of the Journal of Law and the Biosciences, a peer-reviewed journal published by Oxford University Press and serves on the editorial board for the American Journal of Bioethics. He serves on the Steering Committee for Ethics for the Canadian Institutes of Health Research (CIHR), the Canadian counterpart to the NIH, and on the Ethics Committee for the American Congress of Obstetricians and Gynecologists (ACOG).

Areas of Interest

FDA in the Twenty-First Century: The Challenges of Regulating Drugs and New Technologies (Holly Fernandez Lynch & I. Glenn Cohen eds., Columbia Univ. Press 2015).
Categories:
Health Care
,
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Administrative Law & Agencies
,
Congress & Legislation
,
Bioethics
,
Food & Drug Law
,
Health Law & Policy
Type: Book
Abstract
In its decades-long effort to assure the safety, efficacy, and security of medicines and other products, the Food and Drug Administration has struggled with issues of funding, proper associations with industry, and the balance between consumer choice and consumer protection. Today, these challenges are compounded by the pressures of globalization, the introduction of novel technologies, and fast-evolving threats to public health. With essays by leading scholars and government and private industry experts, FDA in the Twenty-First Century addresses perennial and new problems and the improvements the agency can make to better serve the public good.The collection features essays on effective regulation in an era of globalization, consumer empowerment, and comparative effectiveness, as well as questions of data transparency, conflicts of interest, industry responsibility, and innovation policy, all with an emphasis on pharmaceuticals. The book also intervenes in the debate over off-label drug marketing and the proper role of the FDA before and after a drug goes on the market. Dealing honestly and thoroughly with the FDA's successes and failures, contributors rethink the structure, function, and future of the agency and the effect policy innovations may have on regulatory institutions in other countries.
I. Glenn Cohen, Patients with Passports: Medical Tourism, Law, and Ethics (Oxford Univ. Press 2015).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Book
Abstract
Can your employer require you to travel to India for a hip replacement as a condition of insurance coverage? If injury results, can you sue the doctor, hospital or insurer for medical malpractice in the country where you live? Can a country prohibit its citizens from helping a relative travel to Switzerland for assisted suicide? What about travel for abortion? In Patients with Passports, I. Glenn Cohen tackles these important questions, and provides the first comprehensive legal and ethical analysis of medical tourism. Medical tourism is a growing multi-billion dollar industry involving millions of patients who travel abroad each year to get health care. Some seek legitimate services like hip replacements and travel to avoid queues, save money, or because their insurer has given them an incentive to do so. Others seek to circumvent prohibitions on accessing services at home and go abroad to receive abortions, assisted suicide, commercial surrogacy, or experimental stem cell treatments. In this book, author I. Glenn Cohen focuses on patients traveling for cardiac bypass and other legal services to places like India, Thailand, and Mexico, and analyzes issues of quality of care, disease transmission, liability, private and public health insurance, and the effects of this trade on foreign health care systems. He goes on to examine medical tourism for services illegal in the patient's home country, such as organ purchase, abortion, assisted suicide, fertility services, and experimental stem cell treatments. Here, Cohen examines issues such as extraterritorial criminalization, exploitation, immigration, and the protection of children. Through compelling narratives, expert data, and industry explanations Patients with Passports enables the reader to connect with the most prevalent legal and ethical issues facing medical tourism today.
Human Subjects Research Regulation: Perspectives on the Future (I. Glenn Cohen & Holly Fernandez Lynch, eds., MIT Press 2014).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Book
Abstract
The ANPRM requested public comment on how the current regulations for protecting human research subjects might be modernized and revised to improve efficiency and enhance protections. The ANPRM represents the first potential revision ...
I. Glenn Cohen, Religion and Reproductive Technology, in Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., 2017).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Health Care
Sub-Categories:
Religion & Law
,
Genetics & Reproduction
,
Medical Technology
Type: Book
Abstract
This chapter will examines places where law, religion, and reproductive technology conflict. It examines four particular intersections: The first involves religiously motivated denials of service, in particular as they pertain to single and gay and lesbian couples. The second involves embryo adoption, where the largest providers of the service in the United States are religious organizations. The third is a bit of a dog that didn’t bark (at least so far): the “personhood movement” and its attempts to gain state constitutional protection for zygotes, embryos, and fetuses. Finally, the chapter will close by discussing relatively new attempts by religious organizations to bring forward objections to embryo destruction in pre-embryo disposition disputes between private individuals, in particular a recent case in Missouri that is currently being litigated.
I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch, Comparing Health-Related Policies and Practices in Sports: The NFL and Other Professional Leagues, 8 Harv. J. Sports & Ent. L. 1 (2017).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Gaming & Sports Law
,
Health Law & Policy
Type: Article
Abstract
This comprehensive report, published as part of the Football Players Health Study at Harvard University, highlights areas in which the player health related policies and practices of the NFL could potentially be improved by considering steps taken by other professional sports leagues. While the report concludes that the NFL’s player health provisions are generally the most protective of player health among the relevant comparators, there are still important opportunities for improvement. The report is unprecedented both in scope and focus. This is the first comprehensive comparison of the health-related policies and practices of elite professional sports leagues: the National Football League (NFL); Major League Baseball (MLB); National Basketball Association (NBA); National Hockey League (NHL); Canadian Football League (CFL); and, Major League Soccer (MLS). After analyzing the leagues, the report compares each one to the NFL on the following health-related issues: (1) Club Medical Personnel (including discussion of conflicts of interest); (2) Injury Rates and Policies (including detailed comparisons of concussion rates); (3) Health-Related Benefits (including health insurance and retirement benefits for current and former players); (4) Drug and Performance-Enhancing Substance Policies; (5) Compensation (including guaranteed compensation); and, (6) Eligibility Rules (including discussion of the “readiness” of athletes for professional play). The areas in which the NFL can potentially learn from other leagues are: 1. Pre-season physicals performed by a neutral physician (CFL). 2. Concussion-specific short-term injury list (MLB). 3. Injury reporting policies that do not require disclosure of the location of a player’s injury (MLB, NHL, and CFL). 4. Health insurance to players for life (MLB, NBA, and NHL). 5. Retirement plan payments higher than the NFL (MLB, NBA, and NHL). 6. Players vested in pension plans on their first day in the league (MLB and NHL). 7. Treatment for players who violated performance-enhancing substance policies (NBA and CFL). 8. More guaranteed compensation than in the NFL (MLB, NBA, and NHL). 9. Less restrictive eligibility rules (MLB, NBA, NHL, and MLS).
I. Glenn Cohen, Medical Tourism, Medical Migration, and Global Justice: Implications for Biosecurity in a Globalized World, 25 Med. L. Rev. 200 (2017).
Categories:
Health Care
,
Government & Politics
,
Technology & Law
Sub-Categories:
National Security Law
,
Bioethics
,
Health Law & Policy
,
Medical Technology
Type: Article
Abstract
We live in the age of globalization. In medicine, that globalization has brought many benefits such as the diffusion of technology and the spread of health care training, but it has also brought threats to biosecurity. This article examines how medical tourism and medical migration pose risks to biosecurity. It also argues that designing legal responses to these risks requires not only technical competence but also a theory of global justice to guide that design.
Luke Gelinas, Holly Fernandez Lynch, Barbara Bierer & I. Glenn Cohen, Institutions as an Ethical Locus of Research Prioritisation, J. Med. Ethics (Apr. 6, 2017).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
Ensuring that clinical trials, once launched, successfully complete and generate useful knowledge is an important and indeed ethically imperative goal, given the risks and burdens borne by research participants. Since there are insufficient willing research participants to power all the trials that are currently undertaken,1 addressing underenrolment will require prioritisation decisions that reduce the number of trials competing for participants. While there are multiple levels at which research priority-setting can and does take place, competition between trials often plays out in real time at the institutional or site level, where complex decisions must be made about how to manage overlapping trials in ways that balance different considerations, including the risk of non-completion. We sought to explore what research institutions in particular might ethically do to mitigate the risk that competition between trials will contribute to recruitment shortfalls. Against this backdrop, we appreciate the thoughtful replies to our article and are especially encouraged that all three respondents acknowledge the importance and indeed necessity of setting research priorities in ways that respect the rights and interests of various parties. The key question raised by the commentaries primarily concerns not whether research prioritisation should take place but rather how it is best accomplished. In what follows, we clarify our argument in the original article, and then focus on several points raised in the commentaries regarding the role of institutions in research priority-setting. Our approach is animated by the risk that competition between clinical trials for the same population of participants can be a cause of underenrolment when there are insufficient participants to meet the statistical needs of all open studies. In such situations, one or more of the competing studies will fail to meet recruitment targets, reducing their statistical ability to answer the research question. There are strong ethical reasons to avoid …
Belinda Bennett, I. Glenn Cohen, Sara E. Davies, Lawrence O. Gostin, Peter S. Hill, Aditi Mankad, Alexandra L. Phelan, Future-proofing Global Health: Governance of Priorities, Global Pub. Health (Mar. 8, 2017).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
The year 2015 was a significant anniversary for global health: 15 years since the adoption of the Millennium Development Goals and the creation of the Global Alliance for Vaccines and Immunization, followed two years later by the Global Fund to Fight AIDS, TB and Malaria. 2015 was also the 10-year anniversary of the adoption of the International Health Regulations (May 2005) and the formal entering into force of the Framework Convention on the Tobacco Control (February 2005). The anniversary of these frameworks and institutions illustrates the growth and contribution of 'global' health diplomacy. Each initiative has also revealed on-going issues with compliance, sustainable funding and equitable attention in global health governance. In this paper, we present four thematic challenges that will continue to challenge prioritisation within global health governance into the future unless addressed: framing and prioritising within global health governance; identifying stakeholders of the global health community; understanding the relationship between health and behaviour; and the role of governance and regulation in supporting global health.
Jonathan F. Will, I. Glenn Cohen & Eli Y. Adashi, Personhood Seeking New Life with Republican Control, Ind. L.J.. (forthcoming 2017).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Just three days prior to the inauguration of Donald J. Trump as president of the United States, Rep. Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the practice of reproductive medicine and research. Indeed, such personhood efforts stand apart and distinct from more incremental attempts to restrict abortion that target the abortion procedure and those who would perform it. While personhood efforts have not been successful to date at either the state or federal levels, abortion opponents may find a friend in President Trump and his Supreme Court nominees. What is more, because the recent decision by the Court in Whole Woman’s Health v. Hellerstedt makes it more difficult for states to impose incremental restrictions on the abortion procedure, restrictions focused on the status of the unborn may assume increasing importance. Personhood rhetoric is often seen in proceedings involving the disposition of unused embryos and in laws that restrict access to abortion on the basis of gender, race, or disability. Laws outlawing abortion on the basis of fetal pain are also on the rise. With so much uncertainty surrounding the political landscape, this essay places the personhood movement in historical context with other anti-abortion strategies. This essay further explores the theoretical underpinnings of the personhood movement and considers its future prospects with regard to abortion and other reproductive services.
Luke Gelinas, Robin Pierce, Sabune Winkler, I. Glenn Cohen, Holly Fernandez Lynch & Barbara E. Bierer, Using Social Media as a Research Recruitment Tool: Ethical Issues and Recommendations, 17 Am. J. Bioethics 3 (2017).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
The use of social media as a recruitment tool for research with humans is increasing, and likely to continue to grow. Despite this, to date there has been no specific regulatory guidance and there has been little in the bioethics literature to guide investigators and institutional review boards (IRBs) faced with navigating the ethical issues such use raises. We begin to fill this gap by first defending a nonexceptionalist methodology for assessing social media recruitment; second, examining respect for privacy and investigator transparency as key norms governing social media recruitment; and, finally, analyzing three relatively novel aspects of social media recruitment: (i) the ethical significance of compliance with website "terms of use"; (ii) the ethics of recruiting from the online networks of research participants; and (iii) the ethical implications of online communication from and between participants. Two checklists aimed at guiding investigators and IRBs through the ethical issues are included as appendices.
I. Glenn Cohen & Eli Y. Adashi, Mitochondrial Replacement Therapy: Unmade in the USA, 317 JAMA 574 (2017).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch, Evaluating NFL Player Health and Performance: Legal and Ethical Issues, 165 U. Pa. L. Rev. 227 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Discrimination
,
Gaming & Sports Law
,
Health Law & Policy
,
Employment Discrimination
Type: Article
Abstract
This Article follows the path of a hypothetical college football player with aspirations to play in the National Football League, explaining from a legal and ethical perspective the health and performance evaluations he will likely face throughout his career. Some of these evaluations are commonplace and familiar, while others are more futuristic — and potentially of unproven value. How much information about themselves should aspiring and current professional players be expected to provide in the employment context? What are the current legal standards for employers collecting and acting on an individual’s health- and performance-related information? Drawing on disability law, privacy law, and the law governing genetic testing, this Article seeks to answer those questions, as well as to provide recommendations to better protect the health and privacy of professional football players. The upshot of our analysis is that it appears that some of the existing evaluations of players, both at the NFL Scouting Combine (Combine) and once drafted and playing for a club, seem to violate existing federal employment discrimination laws. Specifically, (1) the medical examinations at the Combine potentially violate the Americans with Disabilities Act’s (ADA) prohibitions on pre-employment medical exams; (2) post-offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post-offer medical examinations that reveal a disability and result in discrimination — e.g., the rescission of a contract offer — potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate the Genetic Information Nondiscrimination Act (GINA); and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA. We believe all employers — including the NFL and its clubs — should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).
Luke Gelinas, Holly Fernandez Lynch, Barbara E. Bierer & I. Glenn Cohen, When Clinical Trials Compete: Prioritising Study Recruitment, J. Med. Ethics (forthcoming 2017).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
,
Health Law & Policy
Type: Article
Abstract
It is not uncommon for multiple clinical trials at the same institution to recruit concurrently from the same patient population. When the relevant pool of patients is limited, as it often is, trials essentially compete for participants. There is evidence that such a competition is a predictor of low study accrual, with increased competition tied to increased recruitment shortfalls. But there is no consensus on what steps, if any, institutions should take to approach this issue. In this article, we argue that an institutional policy that prioritises some trials for recruitment ahead of others is ethically permissible and indeed prima facie preferable to alternative means of addressing recruitment competition. We motivate this view by appeal to the ethical importance of minimising the number of studies that begin but do not complete, thereby exposing their participants to unnecessary risks and burdens in the process. We then argue that a policy of prioritisation can be fair to relevant stakeholders, including participants, investigators and funders. Finally, by way of encouraging and helping to frame future debate, we propose some questions that would need to be addressed when identifying substantive ethical criteria for prioritising between studies.
I. Glenn Cohen, George Q. Daley, and Eli Y. Adashi, Disruptive Reproductive Technologies, 9 Sci. Translational Med. (Jan. 11, 2017).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Bioethics
Type: Article
Abstract
In vitro gametogenesis raises new possibilities for reproductive and regenerative medicine as well as vexing policy challenges.
Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch, The Legality of Biometric Screening of Professional Athletes, 17 Am. J. Bioethics 65 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Gaming & Sports Law
,
Bioethics
,
Health Law & Policy
Type: Article
Holly Fernandez Lynch, I. Glenn Cohen & Barbara E. Bierer, Public Engagement, Notice-and-Comment Rulemaking, and the Common Rule, 39 IRB: Ethics & Hum. Res. 17 (2017).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Health Law & Policy
Type: Article
Abstract
At the federal level in the United States, development of regulations is governed by the Administrative Procedure Act (APA), the statute by which Congress authorized various federal agencies to develop rules with the force of law, under a process called “notice and comment rulemaking.” In 2011, the Department of Health and Human Services (HHS) published in the Federal Register an “Advanced Notice of Proposed Rule Making” (ANPRM) to begin the first public discussion in decades about amending the Federal Policy for the Protection of Human Subjects, also known as the “Common Rule.” Over 1,100 public comments were submitted. In 2015, HHS along with several other federal agencies issued a “Notice of Proposed Rule Making” (NPRM), the second step in the process toward revising the Common Rule. This time, the agencies received nearly 2,200 public comments. Courts have interpreted the APA to require that agencies consider public comments with an “open mind” susceptible to persuasion, although this does not require an agency to actually change what has been proposed. Given the relatively lax legal standard for engaging with public comments, it seems clear that despite widespread opposition to several key changes that have been proposed to the Common Rule, the agencies are free to finalize the rule essentially as set forth in the NPRM. In our view, this would be an extremely worrisome outcome, but one offering little to no legal recourse—and given the pace of change to the Common Rule over the past several decades, not one likely to be corrected any time soon.
Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge Univ. Press forthcoming June 2017).
Categories:
Health Care
,
Constitutional Law
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
Religious Rights
,
Religion & Law
,
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Book
Abstract
"While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else - patient or physician, secular or devout - interested in how US law interacts with health care and religion." -- Publisher
I. Glenn Cohen, The Relationship Between Bioethics and U.S. Health Law: Past, Present, and Future, in The Oxford Handbook of U.S. Health Law (I. Glenn Cohen, Allison K. Hoffman & William M. Sage eds., 2017).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Book
Abstract
This chapter explores the way bioethics is taught as part of U.S. health law. It begins with an overview of changes in several major textbooks in the field that cover bioethics and the law, in terms of their content and the way they organize the field. It then considers the problem of translation and, more specifically, the ways in which the ethical discourse gets translated into a much more formalist legal discourse, by discussing a number of recent court cases, including Sherley v. Sebelius and Isaacson v. Horne. It proceeds by assessing where the field is going, with emphasis on the increased interest in population-level bioethics and the law, including the increased recognition of intellectual property and drug development as topics for both disciplines. The chapter also examines the rise of libertarian bioethics in litigation by focusing on two circuit court cases: Abigail Alliance v. Eschenbach and Flynn v. Holder.
Christopher T. Robertson, I. Glenn Cohen & Holly Fernandez Lynch, Introduction, in Nudging Health: Health Law and Behavioral Economics (I. Glenn Cohen, Christopher T. Robertson & Holly Fernandez Lynch eds., Johns Hopkins Univ. Press 2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Book
Abstract
This introductory chapter to the edited volume "Nudging Health: Health Law and Behavioral Economics" (I. Glenn Cohen, Holly Fernandez Lynch, Christopher T. Robertson, eds.) introduces the potential benefits, drawbacks, and possibilities for using the tools of behavioral economics - and particularly behavioral law and policy - to improve human health, exploring the policy alternatives to traditional "carrots and sticks" that may be utilized in the health sector. It also provides brief summaries of each chapter in the volume, along with a complete Table of Contents. From the book jacket: Behavioral nudges are everywhere: calorie counts on menus, automated text reminders to encourage medication adherence, a reminder bell when a driver’s seatbelt isn’t fastened. Designed to help people make better health choices, these reminders have become so commonplace that they often go unnoticed. In Nudging Health, forty-five experts in behavioral science and health policy from across academia, government, and private industry come together to explore whether and how these tools are effective in improving health outcomes. Behavioral science has swept the fields of economics and law through the study of nudges, cognitive biases, and decisional heuristics — but it has only recently begun to impact the conversation on health care. Nudging Health wrestles with some of the thorny philosophical issues, legal limits, and conceptual questions raised by behavioral science as applied to health law and policy. The volume frames the fundamental issues surrounding health nudges by addressing ethical questions. Does cost-sharing for health expenditures cause patients to make poor decisions? Is it right to make it difficult for people to opt out of having their organs harvested for donation when they die? Are behavioral nudges paternalistic? The contributors examine specific applications of behavioral science, including efforts to address health care costs, improve vaccination rates, and encourage better decision-making by physicians. They wrestle with questions regarding the doctor-patient relationship and defaults in healthcare while engaging with larger, timely questions of healthcare reform. Nudging Health is the first multi-voiced assessment of behavioral economics and health law to span such a wide array of issues — from the Affordable Care Act to prescription drugs.
I. Glenn Cohen, Holly Fernandez Lynch & Christoper T. Robertson, Nudging Health: Health Law and Behavioral Economics (Johns Hopkins Univ. Press 2016).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Book
Abstract
Behavioral nudges are everywhere: calorie counts on menus, automated text reminders to encourage medication adherence, a reminder bell when a driver's seatbelt isn't fastened. Designed to help people make better health choices, these reminders have become so commonplace that they often go unnoticed. In Nudging Health, forty-five experts in behavioral science and health policy from across academia, government, and private industry come together to explore whether and how these tools are effective in improving health outcomes. Behavioral science has swept the fields of economics and law through the study of nudges, cognitive biases, and decisional heuristics-but it has only recently begun to impact the conversation on health care. Nudging Health wrestles with some of the thorny philosophical issues, legal limits, and conceptual questions raised by behavioral science as applied to health law and policy. The volume frames the fundamental issues surrounding health nudges by addressing ethical questions. Does cost-sharing for health expenditures cause patients to make poor decisions?Is it right to make it difficult for people to opt out of having their organs harvested for donation when they die? Are behavioral nudges paternalistic? The contributors examine specific applications of behavioral science, including efforts to address health care costs, improve vaccination rates, and encourage better decision-making by physicians.
Christopher R. Deubert, I. Glenn Cohen & Holly Fernandez Lynch, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations (The Petrie-Flom Ctr. for Health Law Policy, Biotechnology, & Bioethics at Harvard Law Sch., Nov. 17, 2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Other
I. Glenn Cohen, Travis G. Coan, Michelle Ottey & Christina Boyd, Sperm Donor Anonymity and Compensation: An Experiment with American Sperm Donors, 2016 J.L. & Biosciences lsw052 (Nov. 4, 2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Most sperm donation that occurs in the USA proceeds through anonymous donation. While some clinics make the identity of the sperm donor available to a donor-conceived child at age 18 as part of ‘open identification’ or ‘identity release programs,’ no US law requires clinics to do so, and the majority of individuals do not use these programs. By contrast, in many parts of the world, there have been significant legislative initiatives requiring that sperm donor identities be made available to children after a certain age (typically when the child turns 18). One major concern with prohibiting anonymous sperm donation has been that the number of willing sperm donors will decrease leading to shortages, as have been experienced in some of the countries that have prohibited sperm donor anonymity. One possible solution, suggested by prior work, would be to pay current anonymous sperm donors more per donation to continue to donate when their anonymity is removed. Using a unique sample of current anonymous and open identity sperm donors from a large sperm bank in the USA, we test that approach. As far as we know, this is the first attempt to examine what would happen if the USA adopted a prohibition on anonymous sperm donation that used the most ecologically valid population, current sperm donors. We find that 29% of current anonymous sperm donors in the sample would refuse to donate if the law changed such that they were required to put their names in a registry available to donor-conceived children at age 18. When we look at the remaining sperm donors who would be willing to participate, we find that they would demand an additional $60 per donation (using our preferred specification). We also discuss the ramifications for the industry.
I. Glenn Cohen, Holly Fernandez Lynch & Christopher R. Deubert, A Proposal to Address NFL Club Doctors’ Conflicts of Interest and to Promote Player Trust, 46 Hastings Ctr. Rep. S2 (2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
How can we ensure that players in the National Football League receive excellent health care they can trust from providers who are as free from conflicts of interest as realistically possible? NFL players typically receive care from the club's own medical staff. Club doctors are clearly important stakeholders in player health. They diagnose and treat players for a variety of ailments, physical and mental, while making recommendations to the player concerning those ailments. At the same time, club doctors have obligations to the club, namely to inform and advise clubs about the health status of players. While players and clubs share an interest in player health—both of them want players to be healthy so they can play at peak performance—there are several areas where their interests can diverge, and the divergence presents legal and ethical challenges. The current structure forces club doctors to have obligations to two parties—the club and the player—and to make difficult judgments about when one party's interests must yield to another's. None of the three parties involved should prefer this conflicted approach. We propose to resolve the problem of dual loyalty by largely severing the club doctor's ties with the club and refashioning that role into one of singular loyalty to the player-patient. The main idea is to separate the roles of serving the player and serving the club and replace them with two distinct sets of medical professionals: the Players' Medical Staff (with exclusive loyalty to the player) and the Club Evaluation Doctor (with exclusive loyalty to the club). We begin by explaining the broad ethical principles that guide us and that help shape our recommendation. We then provide a description of the role of the club doctor in the current system. After explaining the concern about the current NFL player health care structure, we provide a recommendation for improving this structure. We then discuss how the club medical staff fits into the broader microenvironment affecting player health.
I. Glenn Cohen, Holly Fernandez Lynch & Christopher R. Deubert, A Response to Commentaries, 46 Hastings Ctr. Rep. S45 (2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
Our article “NFL Player Health Care: Addressing Club Doctors’ Conflicts of Interests and Promoting Player Trust” focused on an inherent structural conflict that faces club doctors in the National Football League. The conflict stems from club doctors’ dual role of providing medical care to players and providing strategic advice to clubs. We recommended assigning these roles to different individuals, with the medical staff members who are responsible for providing player care being chosen and subject to review and termination by a committee of medical experts selected equally by the NFL and the NFL Players Association. Recognizing that the problem of structural conflict of interest is deeply entrenched and that our recommendation is a significant departure from the status quo, we invited comment from a diverse and highly qualified group of experts. There is considerable common ground among the commentators. All but one agreed with us that, despite the best intentions of upstanding professionals, there is a structural conflict of interest in the club doctors’ relationship with players, and the commentaries were generally supportive of our recommendation for change. There are also meaningful disagreements, however. Some commentators think that the proposal is on the right track but does not go far enough to reduce the structural conflict of interest, and one commentary wholly disagrees with our analysis and recommendations.
I. Glenn Cohen & Eli Y. Adashi, The FDA is Prohibited From Going Germline, 353 Science 545 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Food & Drug Law
Type: Article
Abstract
A potentially renewable provision of the Consolidated Appropriation Act of 2016 forestalling the prospect of human germline modification was signed into law on 18 December 2015 (1). The provision, also known as a rider (an amendment extraneous to the main purpose of the bill to which it is attached), stipulates that “none of the funds made available by this Act [to the FDA] may be used to review or approve an application for an exemption for investigational use of a drug or biological product… in which a human embryo is intentionally created or modified to include a heritable genetic modification” (1). Destined to expire at the conclusion of this fiscal year (30 September 2016), the rider has since been incorporated yet again into the House and Senate appropriation bills for the fiscal year ending 30 September 2017 (2, 3). Subject to ongoing annual renewal, this congressionally legislated ban undermines ongoing conversations on the possibility of human germline modification, its likely distant time horizon notwithstanding (4). Also affected are ongoing efforts of the FDA to review the prevention of mitochondrial DNA diseases through germline modification of human zygotes or oocytes at risk (5).
I. Glenn Cohen, Review of Paul Knoepfler, GMO Sapiens: The Life-Changing Science of Designer Babies, 16 Am. J. Bioethics W1 (2016)(book review).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
Konstantin Tretyakov & I. Glenn Cohen, Medical Assistance in Dying and 'Suicide Tourism' to Canada: Bill C-14 from a Comparative Perspective, J. Ethics Mental Health, July 26, 2016.
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Comparative Law
Type: Article
Abstract
Bill C-14 was introduced by the government of Canada in the aftermath of the Supreme Court’s decision which legalized physician-assisted dying in Canada. This article compares the Bill with the decision of the Supreme Court (Carter v. Canada (Attorney General)) and tracks some of the important ways that the proposed Bill departs from the Carter decision. The Article also explores the ways in which the regime proposed under the Bill is both more and less restrictive than the U.S. states that have adopted regimes for assistance in dying. The article also analyzes the approach the Bill has taken to exclude non-citizen non-residents from using assistance in dying in Canada and whether this exclusion is in tension with the spirit of Carter. Finally, the article examines potential constitutional challenges should the Bill become law.
I. Glenn Cohen & Eli Y. Adashi, Preventing Mitochondrial DNA Diseases: One Step Forward, Two Steps Back, 316 JAMA 273 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Eli Y. Adashi, Embryo Disposition Disputes: Controversies and Case Law, 46 Hastings Ctr. Rep. 13 (2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen & D. James Greiner, From Medical Experimentation to Non-Medical Experimentation: What Can and Cannot Be Learned from Medicine as to the Ethics of Legal and Other Non-Medical Experiments?, in Charles Fried, Medical Experimentation: Personal Integrity and Social Policy: New Edition 192 (Franklin Miller & Alan Wertheimer eds., Oxford Univ. Press 2016).
Categories:
Health Care
,
Legal Profession
Sub-Categories:
Bioethics
,
Legal Ethics
Type: Book
Abstract
After an appreciation of the contribution of the main text to the clarification and deepening of the utility and dilemmas of randomized clinical trials (RCTs) in medicine, this chapter notes the present ubiquity of RCTs in, for instance, social welfare programs, labor economics, education, political science, sociology, and law, several of which are discussed in detail. The chapter notes ways in which these are and are not like RCTs in the context of medical care. In several of the law examples, such as randomizing bail conditions and assigning lawyers to meet legal needs of low-income individuals, none of the subjects of the research are (yet) in a client relationship similar to that of a patient, and so there is no analogous duty on the part of the experimenters. It is an allocation of scarce resources in part carried out in a way that may yield more reliable knowledge.
I. Glenn Cohen & Eli Y. Adashi, Mitchochondrial Replacement Therapy: The IOM report and its aftermath, 17 Nature Reviews Genetics 189 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Ruben Amarasingham, Anne-Marie J. Audet, David W. Bates, I. Glenn Cohen, Martin Entwistle, G.J. Escobar, Vincent Liu, Lynn Etheredge, Bernard Lo, Lucila Ohno-Machado, Sudha Ram, Suchi Saria, Lisa M. Schilling, Anand Shah, Walter F. Stewart, Ewout W. Steyerberg & Bin Xie, Consensus Statement on Electronic Health Predictive Analytics: A Guiding Framework to Address Challenges, 4 eGEMs (Generating Evidence & Methods to improve patient outcomes) iss. 1, art. 3, Mar. 7, 2016.
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Medical Technology
Type: Article
Abstract
The recent explosion in available electronic health record (EHR) data is motivating a rapid expansion of electronic health care predictive analytic (e-HPA) applications, defined as the use of electronic algorithms that forecast clinical events in real time with the intent to improve patient outcomes and reduce costs. There is an urgent need for a systematic framework to guide the development and application of e-HPA to ensure that the field develops in a scientifically sound, ethical, and efficient manner.
Eli Y. Adashi & I. Glenn Cohen, Going Germline: Mitochondrial Replacement as a Guide to Genome Editing, 64 Cell 832 (2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Noah Chase Berman, Esther S. Tung, Natalie Matheny, I. Glenn Cohen & Sabine Wilhelm, Clinical Decision Making Regarding Suicide Risk: Effect of patient and clinician age, 40 Death Stud. 269 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Psychology & Psychiatry
Type: Article
Holly Fernandez Lynch, Barbara E. Bierer & I. Glenn Cohen, Confronting Biospecimen Exceptionalism in Proposed Revisions to the Common Rule, 46 Hastings Ctr. Rep. 4 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Noah Chase Berman, Alexandra Sullivan, Sabine Wilhelm & I. Glenn Cohen, Effect of a Legal Prime on Clinician’s Assessment of Suicide Risk, 40 Death Stud. 61 (2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Psychology & Psychiatry
Type: Article
I. Glenn Cohen, Sperm and Egg Donor Anonymity: Legal and Ethical Issues, in The Oxford Handbook of Reproductive Ethics (Leslie Francis ed., 2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Book
Abstract
Gamete donor anonymity has become an increasingly active area of legislative, bioethical, and empirical interest over the last decade or so. This chapter begins by detailing the very different status of gamete donor anonymity, contrasting the United States (where the law does not prohibit it) with the rest of the world (where it has been largely prohibited by law) and examining the effects of these policies. The chapter then examines the major arguments that have been offered in favor of and against mandating nonanonymous gamete donation. In particular, it focuses on the effects of removing anonymity on supply and arguments in favor of ending sperm donor anonymity based on the welfare of donor-conceived children or rights claims by them. The chapter also more briefly considers ethical and legal issues related to donor compensation, accidental incest, information reciprocity between donors and recipients, and reproductive tourism.
The Oxford Handbook of U.S. Health Law (I. Glenn Cohen, Allison K. Hoffman & William M. Sage eds., Oxford Univ. Press 2016).
Categories:
Health Care
,
Government & Politics
,
International, Foreign & Comparative Law
,
Labor & Employment
,
Technology & Law
,
Civil Practice & Procedure
Sub-Categories:
Torts - Negligence
,
Federalism
,
Administrative Law & Agencies
,
Congress & Legislation
,
Bioethics
,
Health Law & Policy
,
Disability Law
,
Comparative Law
,
Employee Benefits
,
Insurance Benefits
,
Information Privacy & Security
Type: Book
Abstract
"he Oxford Handbook of U.S. Health Law covers the breadth and depth of health law, with contributions from the most eminent scholars in the field. The Handbook paints with broad thematic strokes the major features of American healthcare law and policy, its recent reforms including the Affordable Care Act, its relationship to medical ethics and constitutional principles, and how it compares to the experience of other countries. It explores the legal framework for the patient experience, from access through treatment, to recourse (if treatment fails), and examines emerging issues involving healthcare information, the changing nature of healthcare regulation, immigration, globalization, aging, and the social determinants of health. This Handbook provides valuable content, accessible to readers new to the subject, as well as to those who write, teach, practice, or make policy in health law." --Publisher
Eli Y. Adashi & I. Glenn Cohen, Editing the Genome of the Human Germline: May Cool Heads Prevail, 15 Am. J. Bioethics 40 (2015).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Valorie A. Crooks, I. Glenn Cohen, Krystyna Adams, Rebecca Whitmore & Jeffrey Morgan, Inbound Medical Tourism to Barbados: A qualitative examination of local lawyers’ prospective legal and regulatory concerns, 15 BMC Health Services Res. 291 (2015).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Abstract
Enabled by globalizing processes such as trade liberalization, medical tourism is a practice that involves patients’ intentional travel to privately obtain medical care in another country. Empirical legal research on this issue is limited and seldom based on the perspectives of destination countries receiving medical tourists. We consulted with diverse lawyers from across Barbados to explore their views on the prospective legal and regulatory implications of the developing medical tourism industry in the country.
Jeremy Snyder, Krystyna Adams, Y. Y. Chen, Daniel Birch, Timothy Caulfield, I. Glenn Cohen, Valorie A. Crooks, Judy Illes & Amy Zarzeczny, Navigating Physicians’ Ethical and Legal Duties to Patients Seeking Unproven Interventions Abroad, 6 Can. Fam. Physician 584 (2015).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Regulating Bodies Across Borders: Medical Tourism for Services Legal in the Home and Destination Country: Legal and Ethical Issues, in Bodies Across Borders: The Global Circulation of Body Parts, Medical Tourists and Professionals (Bronwyn Parry, Beth Greenhough, Tim Brown & Isabel Dyck eds., 2015).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Book
Abstract
‘Medical tourism’ (to use the most common term, though ‘cross-border health care’ or ‘medical travel’ could also be used), is the travel of patients from their home country to a foreign country for the primary purpose of receiving health care services. There is no doubt that the existing market is significant, even though there are considerable disputes about its exact size. This chapter concerns legal and ethical issues related only to medical tourism for services that are legal in the patient’s home and destination country and will cover issues faced by all three populations of medical tourists engaged in it: patients paying out of pocket, private insurer prompted and government prompted medical tourists. I put to one side medical tourism for services illegal in the home or destination country, which I have dealt with elsewhere. First, I will discuss the question of how tourist patients can determine the quality of foreign facilities, the possibility of state interventions and the ability and the provision of patient safety information and the challenges in securing that information are discussed, including comparisons to domestic initiatives. Second, and especially as to medical tourists coming from the US, I discuss the question of whether medical tourists can recover for medical malpractice committed abroad and possible regulatory salves. Third, I turn to private insurer prompted medical tourism, focusing on its existing (and potential) regulation in the US health care system. Finally, I discuss government-prompted medical tourism in the form of the EU rules regarding reimbursement of cross-border health care. Because of the large numbers of topics covered here, my treatment of each will be brief, but I have written on each in-depth in other work.
I. Glenn Cohen, Complexifying Commodification, Consumption, ART, and Abortion, 43 J.L. Med. & Ethics 307 (2015).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, This is Your Brain on Human Rights: Moral Enhancement and Human Rights, 9 Law & Ethics Hum. Rts. 1 (2015).
Categories:
International, Foreign & Comparative Law
,
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Human Rights Law
Type: Article
Abstract
It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. The purpose of this essay is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. I sketch the alternative possibility and examine it from a normative and (to a lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. This is currently science fiction, but there is some scientific evidence that moral enhancement may one day be possible. I call the alternative “moral enhancement to respect human rights law.” To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth “looking into?” Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden.
I. Glenn Cohen, Julian Savulescu & Eli Y Adashi, Transatlantic Lessons in Regulation of Mitochondrial Replacement Therapy, 348 Science 178 (2015).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Mutant mitochondrial DNA (mtDNA) gives rise to a broad range of heritable clinical syndromes (1). A cure for those affected remains out of reach (1). However, recently developed mitochondrial replacement therapy (MRT) has raised the prospect of disease-free progeny for women carriers (2–4). Moreover, the feasibility of replacing mutant oocytic or zygotic mtDNA with a donated wild-type counterpart in humans has now been firmly established (2–4). In the United Kingdom, legislation regulating the clinical application of MRT, now 10 years in the making, has recently been approved by the House of Commons (5) and the House of Lords (6). The regulatory vetting of MRT in the United States, under way for a year, remains a work in progress (7). Here, we compare and contrast the regulatory history of MRT in the United Kingdom and the United States and examine potential lessons learned.
Eli Y. Adashi, Hans Gao & I. Glenn Cohen, Hospital-Based Active Shooter Incidents, Sanctuary Under Fire, 313 JAMA 1209 (2015).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
On January 20, 2015, Michael J. Davidson, MD, a cardiothoracic surgeon, was fatally shot on the premises of the Brigham and Women’s Hospital in Boston, Massachusetts. In the year leading up to this tragic day, a total of 14 active shooter incidents occurred in hospitals throughout the United States, leaving 15 fatalities in their wake. This reality and its potential amplification by copycats has reignited the debate over the adequacy of current and future hospital security arrangements. In this Viewpoint, we discuss the evolving frequency of hospital-based active shooter incidents, the relevant legal framework, and the role of hospitals and physicians in countering this threat.
Identified Versus Statistical Lives: An Interdisciplinary Perspective (I. Glenn Cohen, Norman Daniels & Nir Eyal eds., Oxford Univ. Press 2015).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Book
Abstract
Human beings show a greater inclination to assist (and avoid harming) persons and groups identified as those at high risk of great harm than to assist (and avoid harming) persons and groups who will suffer (or already suffer) similar harm but are not identified (as yet). The problem touches almost every aspect of human life and politics: health, the environment, the law. This volume is the first book to tackle the effect from all necessary perspectives.
I. Glenn Cohen, Are All Abortions Equal? Should There Be Exceptions to the Criminalization of Abortion for Rape and Incest?, 43 J.L. Med. & Ethics 87 (2015).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, My Body, My Bank, 93 Tex. L. Rev. 953 (2015)(reviewing Kara W. Swanson, Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America (2014)).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Food & Drug Law
Type: Article
Noah C. Berman, Abigail Stark, Allison Cooperman, Sabine Wilhelm & I. Glenn Cohen, Effect of Patient and Therapist Factors on Suicide Risk Assessment, 39 Death Stud. 433 (2015).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Psychology & Psychiatry
Type: Article
Abstract
The present study examined how patient risk factors and clinician demographics predict the assessment of suicide risk. Clinicians (N = 333) read two vignettes, one of which manipulated patient risk factors, then rated the patient's likelihood of suicide and need for hospitalization. Clinicians’ assessments were heterogeneous. Results indicated that certain patient risk factors (access to excess medication) and clinician demographics (relationship status, religiosity) predicted perceived suicide risk; and, moreover, clinicians’ suicide risk assessment did not always align with the decision to hospitalize the patient. The authors discuss methods for standardizing clinicians’ judgment of risk and minimizing error through debiasing strategies (cognitive forcing strategy).
I. Glenn Cohen, Regulating the Organ Market: Normative Foundations for Market Regulation, 77 Law & Contemp. Probs. 71 (2014).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Should organs for transplant be bought and sold? There is a developed literature providing various arguments against organ markets and/or refuting those arguments. There is also a developing literature on potential regulations or redesigns of the organ market that would be desirable. There has been less dialogue between these two literatures than one might expect, in part, I suspect, because (i) those who seek to offer arguments to ban the organ markets altogether have been less interested in helping to shore up their opponents’ positions or provide mechanisms by which their concerns may be blunted, and (ii) because many who are interested (or have sophisticated training) in deep normative questions of freedom, rights, and justice find themselves less interested (or have less sophisticated training) in regulatory design questions, and vice versa. I try to bridge this gap in this article, one of two I did for this issue of Law and Contemporary Problems (the other is "Organs Without Borders? Allocating Transplant Organs, Foreigners, and the Importance of the Nation State (?)" and can be found at http://ssrn.com/abstract=2511901). Part II of this Article maps normative arguments against the sale of organs on to regulatory proposals for “organ markets.” Those who oppose organ sale may oppose it for a number of different normative reasons independently or in conjunction, and my goal is to show to whether someone who opposes the sale of organs for X normative reasons can nonetheless support some forms of a regulated organ market. My goal might also be put in more positive terms, to show those who are unsure about whether organ markets are a good idea what forms of regulation would make organ markets worthwhile to pursue. In this part I largely suspend judgment about the validity of each of the normative critiques I set out and instead in good faith examine to what extent regulation can deal with them. In Part III I add to the literature on regulated organ markets by engaging a particular type of argument related to just distributions that has been offered as a reason to be concerned about organ markets. More specifically, I press on the assumption that the distribution of organs in systems where compensation is prohibited is itself a just baseline against which to measure the distribution that results when compensation is permitted.
I. Glenn Cohen, Make It Work!: Justice Breyer on Patents in the Life Sciences, 128 Harv. L. Rev. 418 (2014).
Categories:
Health Care
,
Technology & Law
,
Property Law
Sub-Categories:
Health Law & Policy
,
Intellectual Property - Patent & Trademark
,
Intellectual Property Law
Type: Article
I. Glenn Cohen, Organs Without Borders? Allocating Transplant Organs, Foreigners, and the Importance of the Nation-State (?), 77 Law & Contemp. Probs. 175 (2014).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Most of the discussion of market or non-market forms of allocating and procuring organs takes as its unit of analysis the nation state, or, less commonly a particular state or province, and asks what should the system look like as to this unit. In this article, the second of two articles I contribute to this issue of Law and Contemporary Problems, I want to expand the viewfinder and examine an issue that has received peculiarly little attention in the scholarly and policy discourse: the desirability of treating the nation state (or its subdivisions) as the right level of distribution for organs, whether through market systems or non-market allocation systems. I will show that when we flirt with using a more global viewfinder, a series of difficult (and thus far largely unexplored) ethical and regulatory questions arise relating to the inclusion of "outsiders." At the very end of this article I explore what relevance this analysis may have to allocation within the nation-state as well. A large number of questions could be discussed under this title, but for this article I largely limit myself to two related questions. For both I will use the U.S. as the "home country" for rhetorical clarity, but the basic issues are the same for any home country. The first issue is: Should the U.S. allow "foreigners" to be on the list of those eligible to receive organs in the U.S. when they become available, and, if so, at what level of priority? Surprisingly the current law allows them to be listed to receive organs and if they are so listed it prohibits any discrimination against them for priority based on their being foreign. Second: should the U.S. maintain its own organ distribution network that is limited to the nation state instead of participating in a more globalized system? I should emphasize that my interest here is organs that come to recipients through typical government-run (or at least government-approved) organ allocation systems rather than foreigners who come to U.S. centers and bring their own living donor. I first describe the two issues and then offer a normative analysis of each. This cluster of issues applies equally to the current U.S. distribution system with its hostility to markets and any of the potential alterations discussed in other articles in this issue of Law and Contemporary Problems. That is, even if we introduce market elements of one form or another to the U.S. organ allocation system -- as I discuss in my companion article in this issue and as do other authors -- we will still have to answer the two questions I am interested in this article: Should non-U.S citizens who are non-residents be allowed to have access to U.S. organs in the domestic system, and should the U.S. as a whole join larger inter-country organ allocation systems? At the end of this paper, I make some comments about what this analysis implies as to organ sharing within a nation state, for example between U.S. states or geographic regions. Let me emphasize a terminological point here. I am using the term "foreigner" in a specific sense to refer to someone who is non-U.S. resident and a non-U.S. citizen. There are several intermediate cases between "foreigner" and citizen-resident, particularly the non-U.S. citizen who is a U.S. resident (like this author at the present moment!), citizen non-residents (e.g., expatriates), legal versus illegal residents (sometimes referred to as documented versus undocumented aliens) as well as various degrees of residency (visa versus permanent resident versus asylum seeker). A full ethical analysis would pick out each of these possibilities and run the analysis for each, but doing so would require a fuller theory of the importance of citizenship versus residency for benefits and burdens of home country law and policy than I intend to tackle in this article. Parts of the analysis I offer suggests resident non-citizens, whether in the U.S. legally or illegally should be treated quite differently for this analysis, but those implications and this category of persons are not my main concern in this article. Instead, in this article I am interested in the relative priority for home country organ allocation of two groups: "Insiders" to the nation state (resident citizens) and "foreigners" (non-resident non-citizens).
W. Nicholson Price II & I. Glenn Cohen, Nudging the FDA, 10 Am. Interest 35 (2014).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
Type: Article
Michelle M. Mello & I. Glenn Cohen, Clinical Trials and the Right to Remain Silent, 174 JAMA Internal Med. 1505 (2014).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Food & Drug Law
Type: Article
I. Glenn Cohen, Holly Fernandez Lynch & Gregory D. Curfman, When Religious Freedom Clashes with Access to Care, 371 New Eng. J. Med. 596 (2014).
Categories:
Health Care
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
Religious Rights
,
Health Law & Policy
Type: Article
Nathan G. Cortez, I. Glenn Cohen & Aaron S. Kesselheim, FDA Regulation of Mobile Health Technologies, 370 New Eng. J. Med. 372 (2014).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Food & Drug Law
,
Health Law & Policy
,
Science & Technology
,
Medical Technology
Type: Article
I. Glenn Cohen, Jeremy Feigenbaum & Eli Y. Adashi, Reconsideration of the Lifetime Ban on Blood Donation by Men Who Have Sex With Men, 312 JAMA 337 (2014).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Food & Drug Law
,
Health Law & Policy
,
Bioethics
Type: Article
I. Glenn Cohen, Ruben Amarasingham, Anand Shah, Bin Xie & Bernard Lo, The Legal And Ethical Concerns That Arise From Using Complex Predictive Analytics In Health Care, 33 Health Aff. 1139 (2014).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Abstract
Predictive analytics, or the use of electronic algorithms to forecast future events in real time, makes it possible to harness the power of big data to improve the health of patients and lower the cost of health care. However, this opportunity raises policy, ethical, and legal challenges. In this article we analyze the major challenges to implementing predictive analytics in health care settings and make broad recommendations for overcoming challenges raised in the four phases of the life cycle of a predictive analytics model: acquiring data to build the model, building and validating it, testing it in real-world settings, and disseminating and using it more broadly. For instance, we recommend that model developers implement governance structures that include patients and other stakeholders starting in the earliest phases of development. In addition, developers should be allowed to use already collected patient data without explicit consent, provided that they comply with federal regulations regarding research on human subjects and the privacy of health information.
Robert D. Truog, I. Glenn Cohen & Mark Rockoff, Physicians, Medical Ethics, and Execution by Lethal Injection, 311 JAMA 2375 (2014).
Categories:
Health Care
,
Criminal Law & Procedure
Sub-Categories:
Capital Punishment
,
Bioethics
,
Health Law & Policy
Type: Article
Holly Fernandez Lynch & I. Glenn Cohen, Streamlining Review by Accepting Equivalence, 14 Am. J. Bioethics 11 (2014).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
I. Glenn Cohen, A Fuller Picture of Organ Markets, 14 Am. J. Bioethics 19 (2014).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Travis G. Coan, Can You Buy Sperm Donor Identification? An Experiment, 10 J. Empirical Legal Stud. 715 (2013).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
Abstract
In the United States, most sperm donations are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once he or she reaches the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea. This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the United States. Our results support the hypothesis that subjects in the treatment (nonanonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects who would ever actually consider donating sperm, we find that individuals in the control condition are willing to accept an average of $43 to donate, while individuals in the treatment group are willing to accept an average of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both anonymous and identity release programs in terms of what it pays donors.
I. Glenn Cohen, Lisa Sullivan & Eli Y. Adashi, Plan B: Access to emergency contraception in the legal and political cross hairs, 88 Contraception 477 (2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
H. Benjamin Harvey & I. Glenn Cohen, The Looming Threat of Liability for Accountable Care Organizations and What to Do About It, 310 JAMA 141 (2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
I. Glenn Cohen & Eli Y. Adashi, Made-to-Order Embryos for Sale — A Brave New World?, 368 New Eng. J. Med. 2517 (2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, Of Modest Proposals and Non-Identity: A Comment on the Right to Know Your Genetic Parents, 13 Am. J. Bioethics 45 (2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, The Globalization of Health Care: Legal and Ethical Challenges (Oxford Univ. Press 2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Book
Abstract
Coming on the heels of the most expansive reform to U.S. health care in fifty years, this book plots the ways in which this globalization will develop as the reform is implemented.
I. Glenn Cohen, Charles A. Czeisler & Christopher P. Landrigan, Making Residency Work Hour Rules Work, 41 J.L. Med. & Ethics 310 (2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
In July 2011, the ACGME implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law.
I. Glenn Cohen, Rationing Legal Services, 5 J. Legal Analysis 221 (2013).
Categories:
Health Care
,
Legal Profession
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Legal Reform
,
Legal Services
Type: Article
Abstract
There is a deepening crisis in the funding of legal services in the USA with cut backs in Legal Services Corporation and Interest on Lawyers Trust Account funding, rendering more visible the fact that there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. This article examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone. I draw on the bioethics literature on the allocation of medical goods (organs, ICU beds, vaccine doses, etc.) to illuminate the problems facing LSPs and the potential rationing principles they might adopt.
I. Glenn Cohen, Transplant Tourism: The Ethics and Regulation of International Markets for Organs, 41 J.L. Med. & Ethics 269 (2013).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Valorie A. Crooks, Leigh Turner, I Glenn Cohen, Janet Bristeir, Jeremy Snyder, Victoria Casey & Rebecca Whitmore, Ethical and Legal Implications of the Risks of Medical Tourism for Patients: A qualitative study of Canadian health and safety representatives’ perspectives, 3 BMJ Open (2013).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Abstract
Objectives: Medical tourism involves patients’ intentional travel to privately obtain medical care in another country. Empirical evidence regarding health and safety risks facing medical tourists is limited. Consideration of this issue is dominated by speculation and lacks meaningful input from people with specific expertise in patient health and safety. We consulted with patient health and safety experts in the Canadian province of British Columbia to explore their views concerning risks that medical tourists may be exposed to. Herein, we report on the findings, linking them to existing ethical and legal issues associated with medical tourism. Design: We held a focus group in September 2011 in Vancouver, British Columbia with professionals representing different domains of patient health and safety expertise. The focus group was transcribed verbatim and analysed thematically. Participants: Seven professionals representing the domains of tissue banking, blood safety, health records, organ transplantation, dental care, clinical ethics and infection control participated. Results: Five dominant health and safety risks for outbound medical tourists were identified by participants: (1) complications; (2) specific concerns regarding organ transplantation; (3) transmission of antibiotic-resistant organisms; (4) (dis)continuity of medical documentation and (5) (un)informed decision-making. Conclusions: Concern was expressed that medical tourism might have unintended and undesired effects upon patients’ home healthcare systems. The individual choices of medical tourists could have significant public consequences if healthcare facilities in their home countries must expend resources treating postoperative complications. Participants also expressed concern that medical tourists returning home with infections, particularly antibiotic-resistant infections, could place others at risk of exposure to infections that are refractory to standard treatment regimens and thereby pose significant public health risks.
Jonathan Will, Eli Y. Adashi & I. Glenn Cohen, When Potential Does Not Matter: What Developments in Cellular Biology Tell Us About the Concept of Legal Personhood, 13 Am. J. Bioethics 38 (2013).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, S.H. and Others v. Austria and Circumvention Tourism, 25 Reproductive BioMedicine Online 660 (2012).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
This commentary discusses the decision in S.H. and Others v. Austria from a political theoretical and bioethical perspective. I focus on the opinion’s discussion of what I call ‘circumvention tourism’, travelling abroad for the purpose of circumventing domestic prohibitions, especially as to medical services. The majority opinion in the case touts Austria’s allowance of circumvention tourism for reproductive technology services that are illegal on Austrian soil as a reason to find as lawful Austria’s prohibition on using those services on Austrian soil. To the contrary, I show that, in many ways, permitting circumvention tourism for these services while prohibiting them domestically is deeply problematic.
Michelle M. Mello & I. Glenn Cohen, The Taxing Power and the Public's Health, 367 New Eng. J. Med. 1777 (2012).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
I. Glenn Cohen, Can the Government Ban Organ Sale? Recent Court Challenges and the Future of US Law on Selling Human Organs and Other Tissue, 12 Am. J. Transplantation 1983 (2012).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012).
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Health Law & Policy
,
Bioethics
Type: Article
I. Glenn Cohen, How to Regulate Medical Tourism (And Why It Matters For Bioethics), 12 Dev. World Bioethics 9 (2012).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Eli Y. Adashi, In the Wake of Guatemala: The Case for Voluntary Compensation and Remediation, 102 Am. J. Pub. Health e4 (2012).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Recently unearthed records reveal that between 1946 and 1948, researchers with the US Public Health Service engaged in nonconsensual inoculation of vulnerable Guatemalan populations with syphilis, gonorrhea, or chancroid. The US government has issued formal public apologies to the Guatemalan government and its people, and the Presidential Commission for the Study of Bioethical Issues has been tasked with reviewing the historical record and the adequacy of protection of human research participants. We argue that the US response is insufficient and call for a restitution program directed at the aggrieved parties. We review the lessons of two earlier analogous cases and propose guiding principles upon which such a restitution program could be crafted with the Guatemalan people in mind.
I. Glenn Cohen, Selling Bone Marrow — Flynn v. Holder, 366 New Eng. J. Med. 296 (2012).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, The Constitutionality of the ACA's Medicaid-Expansion Mandate, 366 New Eng. J. Med. 103 (2012).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
I. Glenn Cohen, Response: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, 100 Geo. L.J. 431 (2012).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011).
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Prohibiting Anonymous Sperm Donation and the Child Welfare Error, 41 Hastings Ctr. Rep. 13 (2011).
Categories:
Family Law
,
Health Care
Sub-Categories:
Reproduction
,
Children's Law & Welfare
,
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Eli Y. Adashi, Human Embryonic Stem-Cell Research under Siege - Battle Won but Not the War, 364 New Eng. J. Med. e48 (2011).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Sadath Sayeed, Fetal Pain, Abortion, Viability, and the Constitution, 39 Law, Med. & Ethics 235 (2011).
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
Abstract
In early 2010, the Nebraska state legislature passed a new abortion restricting law asserting a new, compelling state interest in preventing fetal pain. In this article, we review existing constitutional abortion doctrine and note difficulties presented by persistent legal attention to a socially derived viability construct. We then offer a substantive biological, ethical, and legal critique of the new fetal pain rationale.
I. Glenn Cohen, Medical Tourism, Access to Health Care, and Global Justice, 52 Va. J. Int'l L. 1 (2011).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument, 95 Iowa L. Rev. 1467 (2010).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Medical Tourism: The View from Ten Thousand Feet, 40 Hastings Ctr. Rep. 11 (2010).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Daniel Chen, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, 95 Minn. L. Rev. 485 (2010).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
,
Medical Technology
Type: Article
I. Glenn Cohen, Intentional Diminishment, the Non-Identity Problem, and Legal Liability, 60 Hastings L.J. 347 (2008).
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, The Right Not To Be a Genetic Parent?, 81 S. Cal. L. Rev. 1115 (2008).
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 Stan. L. Rev. 1135 (2008).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Food & Drug Law
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, Negotiating Death: ADR and End of Life Decision-making, 9 Harv. Negot. L. Rev. 253 (2004).
Categories:
Civil Practice & Procedure
,
Health Care
Sub-Categories:
Dispute Resolution
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Negotiating in the Shadow of Death, Disp. Resol. Mag., Fall 2004, at 12.
Categories:
Health Care
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Note, The Price of Everything, the Value of Nothing: Reframing the Commodification Debate, 117 Harv. L. Rev. 689 (2003).
Categories:
Health Care
,
Legal Profession
Sub-Categories:
Health Law & Policy
,
Legal Ethics
,
Legal & Political Theory
Type: Article
I. Glenn Cohen, Therapeutic Orphans, Pediatric Victims? The Best Pharmaceuticals for Children Act and Existing Pediatric Human Subject Protection, 58 Food & Drug L.J. 661 (2003).
Categories:
Health Care
,
Family Law
Sub-Categories:
Children's Law & Welfare
,
Food & Drug Law
,
Health Law & Policy
Type: Article
I. Glenn Cohen & Jonathan Blavin, Note, Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary, 16 Harv. J.L. & Tech. 265 (2002).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
Type: Article
Abstract
This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw. Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems. Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains. Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse. Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases. Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent. In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments. Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality. Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary. Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded. While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce. This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions. Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space. Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it. Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality. The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them.
I. Glenn Cohen, Case Comment, Supreme Court of New Jersey Holds that Preembryo Disposition Agreements Are Not Binding When One Party Later Objects, J.B. v. M.B., 115 Harv. L. Rev. 701 (2001).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
I. Glenn Cohen, Administrative Developments: New Human Subject Research Guidelines for IRBs, 28 J.L. Med. & Ethics 305 (2000).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article

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