Faculty Bibliography

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).

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.

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).

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.

Should human enhancement be prohibited? Subsidized? Mandated? Taxed? This article is part of a symposium honoring one of my wonderful mentors: Einer Elhauge. It focuses on human enhancement. With advances in reproductive technologies, genetic screening, and concomitant calls for regulation of these things in America the time for discussing these issues has never been better. Part I offers a reconstructive taxonomy as to different kinds of enhancements, including incorporating one distinction (as to absolute and positional goods and positive and negative externalities) that has been the focus of Elhauge’s own thinking. That said, one leitmotif of this Part is that “enhancement” as a category may not be particularly useful, especially if we accept there are not morally relevant differences in the biological vs. non-biological and treatment vs. enhancement distinctions, such that something like tutoring falls into the category of “enhancement.” Part II offers a taxonomy of legal/regulatory interventions. Part III attempts to sketch and interrogate the major arguments offered against human enhancement, including by mapping these arguments onto the taxonomies developed in Parts I and II and showing to which kinds of enhancements they apply and what kinds of legal/regulatory interventions can accommodate some of the concerns they raise. Finally, Part IV focuses on a question that has received surprisingly scant attention: why enhancement is sought. I will argue that one key reason offered for enhancement, to improve the life of the enhanced in the case of enhancement through reproduction, cannot be sustained for reasons that mirror points I have made elsewhere on the opposite issue, the justification for preventing parents from reproducing in ways that “harm” their offspring.

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.

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.

While NFIB v. Sebelius largely upheld the Affordable Care Act (ACA), it did not do so as as to the proposed expansion of Medicaid. Seven of the nine US Supreme Court Justices (all except Justices Ginsburg and Sotomayor) endorsed a ‘coercion’ argument that gave individual States a right of objection grounded in the Constitution’s Spending Clause, wherein individual states could refuse to expand Medicaid as demanded by the federal government without being directly penalized by a denial of federal funding. Two Justices in dissent focused on the lack of judicial administrability of such a standard, and suggested it would open up a Pandora’s box of future constitutional challenges without any clear rules. In this article, part of a symposium on philosophical analysis of the Court's decision published in the peer-reviewed journal Ethical Perspectives, I discuss what I see as a more fundamental question: by what theory is the Medicaid expansion coercive, and even if coercive, by what theory is it coercive in a problematic way that justifies constitutional redress? The Court’s failure to address this issue stems, in part, from confusion over what it means for an offer to be coercive. In some sense, Justice Kagan seemed to recognize this issue in a question to Paul Clement, the lawyer for the challengers to the ACA, at oral argument: “Why is a big gift from the federal government a matter of coercion?” Kagan asked. “It’s just a boatload of federal money for you to take and spend on poor people’s health care,” Kagan added. “It doesn’t sound coercive to me, I have to tell you.” The exchange is all the more curious because, despite her scepticism, Kagan signed on to the Court’s holding that the Medicaid expansion was coercive. I will examine this issue by first discussing whether Medicaid itself and the ACA’s expansion are coercive (as stand-alone offers). I will then examine whether the offer to change from the existing Medicaid program to the ACA’s Medicaid expansion was problematic. I will analyze these questions under the assumption that the Court is not committing a category error by treating States as the kinds of entities subject to this kind of coercion inquiry. In my conclusion, however, I briefly consider whether that assumption is warranted.

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.

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.

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.

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.

In Regulating Reproduction: The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), http://ssrn.com/abstract=1955292, and its companion paper Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012), http://ssrn.com/abstract=2014069, I argue that a large swath of reproductive regulation in place across the world -- forbidding anonymous sperm donation, funding abstinence education, criminalizing brother-sister incest, preventing the sale of sperm or eggs or surrogacy services, and forbidding single individuals from accessing reproductive technologies, and others -- cannot be justified in the way legislatures, courts, and commentators have tried to do so. They have repeatedly appealed to a justificatory idiom I call Best Interests of the Resulting Child (BIRC) as a justification, which focuses on the best interests of the child who will (absent state intervention) result from these forms of reproduction. Not only does BIRC fail, I argue, but a series of attempts at reformulating the justification or substituting other justifications for it (e.g., non-person-affecting principles, lives not worth living, wronging while overall benefiting, virtue ethics, etc) run into serious difficulties as well. Three of my colleagues have graciously responded to these articles as part of the Minnesota Law Review Headnotes Online Forum: Bridget J. Crawford, "Authentic Reproductive Regulation," http://ssrn.com/abstract=1960590, Helen M. Alvaré, "A Response to Professor I. Glenn Cohen’s 'Regulating Reproduction: The Problem with Best Interests," http://ssrn.com/abstract=2141406, and Kimberly Mutcherson, "In Defense of Future Children: A Response to Cohen’s Beyond Best Interests" http://ssrn.com/abstract=2115756. In this article, "Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson," I reply to them, mapping where we agree, expressing what I admire in their work, and explaining why in the areas where we disagree I am not persuaded by the arguments and think I am right (but of course I WOULD think that....).

As part of the Minnesota Law Review's Headnote online forum, we respond in this paper to Profs Susan Frelich Appleton & Robert A. Pollak, Exploring the Connections Between Adoption and IVF: Twibling Analyses, 95 MINN. L. REV. HEADNOTES 60, 66–69 (2011), which is itself a response to our article, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, 95 MINN. L. REV. 485 (2010), http://ssrn.com/abstract=1664501. We view Professors Appleton and Professor Pollak’s response to our article as both complimentary and complementary. First, they are extremely generous with their praise for our project, which is particularly gratifying given how important their own work has been in the field. Second, and perhaps more importantly, they suggest a number of new tangents and ideas prompted by our project. We first summarize those contributions and how we think they fit with our article. We then very briefly discuss a few instances where we might characterize what we have said differently than they do.

In her novel Woman on the Edge of Time, the Canadian Feminist writer Marge Piercy’s protagonist, Connie Ramos, incarcerated in a mental institution, time travels to a set of possible futures that reflect utopian and dystopian visions of social make-up. Among other things, the more utopian possible future world has embraced many of the ideas explored by Darren Rosenblum’s Unsex Mothering: sex roles, gender hierarchy, and motherhood as we know it have been eliminated; children are no longer born by women, but instead incubated in a “brooder” and raised by three genetically unrelated “co-mothers,” at least two of whom, regardless of their sex, take hormones allowing them to nurse such that even men breast feed. Ethnic and cultural heritage too has been reconfigured and distributed geographically, such that all citizens of a particular city regardless of their ethnic backgrounds follow the Native American ways, while another city might follow the ways of a different cultural or ethnic background. I think of Rosenblum’s fascinating paper as beginning the legal scholarship twin project to Piercy’s novel. In this short response, I want to use science fiction to examine a set of possible future worlds with various kinds of unsexed motherhood and press Rosenblum on the normative criteria by which one might choose between them, something his article does not focus on.

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.

Under what circumstances should a citizen be able to avoid the penalties set by his or her home country’s criminal law by going abroad to engage in the same activity in a place where it is not criminally prohibited? Should we view the ability to engage in prohibited activities by traveling outside of the nation state as a way of accommodating cultural or political differences within our polity? These are general questions regarding the power and theory of extraterritorial application of domestic criminal law. In this Article, I examine the issues through a close exploration of one setting that urgently presents them: medical tourism. Medical tourism – the travel of patients who are citizens and residents of one country, the 'home country,' to another country, the 'destination country,' for medical treatment – is a growing multi-billion dollar industry involving thousands of patients each year from the United States alone. This Article is the first to comprehensively examine a sub-category of medical tourism I call 'circumvention tourism,' involving patients who travel abroad for services that are legal in the patient’s destination country but illegal in the patient’s home country; that is, travel to circumvent domestic prohibitions on accessing certain medical services. The four examples of this phenomenon that I dwell on are circumvention medical tourism for abortion, Female Genital Cutting (FGC), assisted suicide, and reproductive technology usage. I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition? Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage. I also discuss the ways in which this analysis can serve as scaffolding for a more general theory of circumvention tourism. This Article is the third in a trilogy of law review articles I have done on various aspects of Medical Tourism. The first Article, Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument, 95 Iowa L. Rev. 1467 (2010) is available at: http://ssrn.com/abstract=1523701. The second Article, Medical Tourism, Access to Health Care, and Global Justice, 52 Virg. J. Int'l L. 1 (2011), is available at: http://ssrn.com/abstract=1926880.

While many medical tourists are motivated to travel by the price of service, the ability to jump queues, or greater expertise of a foreign provider, there is also a very different kind of medical tourism afoot in the world today that I call “circumvention tourism” — travel to access services that are legal in the patient's destination country but illegal in the patient’s home country, thereby circumventing a domestic prohibition on the service. Examples include travel to obtain abortion, assisted suicide, reproductive technologies, and female genital cutting. This chapter in a book on medical tourism examines legal and ethical issues relating to "circumvention tourism," especially the issue of whether a patient's home country can and should apply its existing domestic prohibition extraterritorially.

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.

This Web-Appendix for our Minnesota Law Review Article,"Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter?," re-analyses our results using a cross-sectional rather than differences-in-differences framework.

This Web-Appendix for our Minnesota Law Review Article,"Trading-Off Reproductive Technology and Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates and Should it Matter?," re-analyses our results using the insurance mandate categorization of other studies in the literature.