Petrie-Flom Interns’ Weekly Round-up: 11/03-11/09

By Kathy Wang and Hyeongsu Park

  • One of the lesser-heralded decisions to come from the elections this Tuesday was the LA county ballot measure requiring male actors in the porn industry to wear condoms during filming. Those opposed to the measure have begun a very vocal dissent, arguing that the industry should be able to regulate itself and that these private concerns should not be up to the discretion of the public. A porn industry trade group also made the argument that this restriction would infringe upon the freedom of expression.
  • Two foreign tobacco companies have protested a Canadian lawsuit that would impose a $50 billion dollar fine on the companies for withholding information from Ontario smokers in the 1950s about the adverse health effects of smoking.
  • On his MSNBC blog, ethicist Art Caplan questioned an expensive NIH study on the use of chelation therapy for heart patients, which showed marginal benefits at best.  He argues that heart patients should focus on what we already know works, but is harder to do: lifestyle changes.
  • California’s ballot included a measure that would require the labeling of all genetically modified food (Proposition 37).  However, this proposal was defeated, renewing conflict between advocates of those claiming the “right to know what is in our food” and biotechnology companies that have repeatedly tried to reassure the public of the safety in consuming such products. Some proponents of the measure are now hoping companies will begin voluntarily labeling or consumers will make more conscious food-purchasing decisions.
  • After Massachusetts voters decided to legalize medical marijuana, a landlord group approached lawmakers with a proposal for an “opt-out” option. The group was concerned that their constituents could be held accountable for tenants growing marijuana in their homes, and appealed to the Department of Public Health to consider this in deciding on zone ordinances and laws.

Dispatches from APHA 2012

By Scott Burris

Two thoughts for the Friday following the 2012 APHA Annual Meeting:

(1) This is a public service message for public health lawyers and their extra-disciplinary significant others.

The American Public Health Association now has a Health Law Section. This is a big step up, in organizational terms. Until this year, health lawyers and those interested in public health law were just a special primary interest group (really, that’s what they called them at APHA – a SPIG.)  As a section, we have more opportunities to recruit members and fill presentation slots, and a greater voice in association governance.

That’s not the best part. The best part is that the officers behind the section and its elevation are all dynamic and mostly young. They’ve got energy and vision, which is going to make this section an exciting one to belong to.  They are making the case within the association and beyond for the importance of law to health, and they are taking a multi-disciplinary view. The section is bringing together legal practitioners in public health, normative legal scholars, and empirical public health law researchers.

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Bill of Health Interview with Einer Elhauge on Health Care Reform

As you have already heard a few times on this blog, Professor Einer Elhauge, the Petrie-Flom Center’s Founding Faculty Director and Petrie Professor of Law at Harvard Law School, has a new book out on health care reform called Obamacare on Trial.  The book collects various essays that Prof. Elhauge published in popular media outlets, along with several postscripts, and it has received all sorts of glowing praise.

Prof. Elhauge has graciously agreed to answer some questions for us in the first ever Bill of Health e-interview.  Check it out:

Bill of Health: So, first things first, did the Supreme Court get it right in NFIB v. Sebelius?

Prof. Elhauge: The Supreme Court got the tax issue right, and I think the Medicaid expansion as well, but I think the Supreme Court got the commerce clause issue totally wrong.  Worse, the way they got it wrong portends trouble for the future.

Bill of Health: What were you most surprised by in the SCOTUS decision?

Prof. Elhauge: The fact that a majority of the Supreme Court was willing to use a methodology that clearly expanded judicial discretion to overrule the political branches, and that no one really ever called them on it either on the Supreme Court or in the briefing.

Bill of Health: You’ve noted that you didn’t originally take the constitutional challenges to the Affordable Care Act seriously.  Why do you think they were able to gain such traction?

Prof. Elhauge: I think the big problem was that the government never directly rebutted either the claim that purchase mandates were unprecedented or the dreaded broccoli hypothetical.  Instead they tried to evade the question, I guess because they thought it was unfavorable to them, but the iron rule of litigation is that if you don’t discuss your problematic issues, then you leave your opponents to be the only one that discusses them, and they are sure to frame them in the way most unfavorable to you. The government’s unwillingness to engage this issue left the Supreme Court with the entirely false impression that Obamacare fundamentally changed the relationship between the individual and government, and that thus the government faced a heavy burden to justify the health insurance mandate.  I think the government should’ve directly argued that in fact federal purchase mandates were not at all unprecedented, but rather that health insurance mandates went all the way back to the framers, who adopted two health insurance mandates in the 1790s in Congresses that had many framers on them.  The government should’ve also pointed out that the argument that courts can, in the name of “limiting principles”, create brand-new restrictions on congressional power that have no basis in the Constitution in order to restrain the possibility that Congress might exercise a power in a silly way, like adopting a broccoli mandate, amounts to a remarkable usurpation of political power by the judicial branches.  One could equally say that because Congress might pass silly laws like a law prohibiting the purchase of broccoli, the federal courts should impose a new constitutional limit that prevents Congress from ever restricting commerce. Or because Congress might tax 100% of our income to buy broccoli or go to war to get more broccoli, the Supreme Court should invalidate Congress’s power to tax or declare war.  The “limiting principles” argument that was employed here ironically has no limiting principle and looks benign but is actually a wolf in sheep’s clothing.

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Worth Reading This Week

By Nicolas Terry

Cross-posted at HealthLawProfs

It’s the End of the University as We Know It?!!? On MOOCs and Attestation

I am writing this from Malaysia where I am touring hospitals as part of my book in progress on medical tourism. I may try to blog on the trip a bit next week, but for now I want to continue my thoughts from my last blog post prompted by our conference on Financial Conflicts of Interest In Research Universities.  Shortly after my post the New York Times ran a long story on Massive Open Online Courses (MOOC)s, such as Coursera, EdX and the like which enroll thousands of students in online courses that incorporate, among other things, recorded lectures in bite sized portions. Full disclosure, I teach in a MOOC of sorts: I teach NY and MA Civil Procedure for the bar-prep company Themis, although this is not as a substitute for university courses. Bar prep has long beem MOOC-y.

MOOCs are, I think, a major form of disruptive innovation for  universities. Suppose I taught the first-year introduction to economics course at my local university. Suppose we have five professors lecturing in that course, as we did at the University of Toronto where I did my undergraduate education (and took such a course). The course is a lecture course. Why have five faculty members teach it? Why not merely record *the best* lecturer of the group and have him record the course and make it available to all the students, ready to be scaled up? But why stop at my faculty? Why not find the best introductory economics lecturer in the U.S., record her, and license it to all faculties across the country?

One answer is the importance of the 1 on 1 faculty engagement. However, once these introductory courses get beyond a certain size (say 150) how different is the MOOC in this regard, do students really access those profs? Moreover, universities offering MOOCs might remedy this downside the same way they do for large bricks and mortar classes through discussion sessions taught by teaching assistants, often graduate school students. I fondly remember being a Teaching Fellow while at law school for Michael Sandel’s Justice course which packed hundreds of students in Sanders Theater (although to Sandel’s credit he was able to make it feel interactive even in those huge numbers). Office hours with *the* professor might be a problem, although again perhaps the other faculty members in the department *not* teaching these large classes anymore would have *more* time to meet students.

To be sure I am not arguing that MOOCs would be as good or better than the bricks and mortar classes  (although interestingly the NY Times’ stories’ report that some students that took the MOOC version of one of the courses featured in the article preferred it to the bricks and mortar version). Instead, the claim is that the resources saved by offering the MOOC and the lower pass-through costs might outweigh diminutions in quality, especially if one could find the very best lecturers.

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