Minister reaffirms commitment to provide medical marijuana, but delays continue

Amid ongoing doubts about the federal government's commitment to provide marijuana for medical use, the first Canadian clinical trial of smoked cannabis has been launched, and a Senate committee has released its controversial and much-anticipated report.     

Beyond "safe and effective": the role of the federal government in supporting and disseminating comparative-effectiveness research

Over the past century, medical advancements have resulted in tremendous health gains for Americans. Although the federal government has played a prominent role in ensuring that new treatments are safe and effective, questions about which medical treatments work best under which circumstances have largely remained unanswered. Thus, the federal government's recent major investments in comparative-effectiveness research have potential to play a significant role in helping both patients and health care providers navigate the vast array of available treatment options, as well as in improving the quality, efficiency, and delivery of health care system-wide. Yet, the controversial nature of the government's foray into comparative-effectiveness research also suggests that the path toward realizing these goals may be treacherous. This Article describes the rationales for federal support of comparative-effectiveness research and potential models for that involvement, analyzes the federal government's recent investments in the research, and concludes with predictions about the probable outcomes of these investments. While increased federal support for comparative-effectiveness research is unlikely to achieve all of the benefits anticipated by its supporters, it is a crucial step toward ensuring that Americans are able to take full advantage of the benefits of medical innovation     

Good cop, bad cop: federal prosecution of state-legalized medical marijuana use after United States v. Lopez

The Supreme Court's recent decisions in United States v. Lopez and United States v. Morrison articulate a vision of federalism under which Congress's regulatory authority under the Commerce Clause is severely limited in favor of returning traditional areas of state concern, particularly criminal law enforcement, to local or state control. The Court's decisions in these cases coincide with ballot initiatives legalizing the medical use of marijuana garnering a majority of the vote in California, Arizona, Alaska, Colorado, Nevada, Oregon, Washington, Maine, and Washington D.C. Those who use marijuana for medical purposes under sanction of state law, however, still face the threat of federal prosecution under the Controlled Substances Act. Medical marijuana proponents have traditionally, and unsuccessfully, contested federal prosecution using individual rights arguments under theories of equal protection or substantive due process. This Comment argues that after Lopez and Morrison, the federal government's authority to regulate intrastate use of marijuana for medicinal purposes is not the foregone conclusion it once was. The author suggests that proponents of medical marijuana use should invoke the federalism arguments of Lopez and Morrison and argue for state legislative independence from the federal government on this issue.     

Justice Excused: The Deployment of Law in Everyday Political Encounters

This paper examines the use of legal claims by government officials and citizens in everyday political encounters involving civil rights. Data come from 580 letters sent to the federal government between 1939 and 1941, and from the replies sent by the newly formed Civil Rights Section of the Justice Department. In almost every case, the department refused to intervene and explained its refusal by making legal claims about federal jurisdiction. These legal claims masked the department's discretionary choices and thus helped depoliticize the encounters. Surprisingly, however, a substantial number of letter writers challenged the government's legal claims by deploying their own legal and moral arguments. The willingness of these citizens to challenge official legal pronouncements cautions against making broad generalizations about the capacity of ordinary people to respond effectively when government officials deploy legal rhetoric.     

Comparative effectiveness research under the Patient Protection and Affordable Care Act: can new bottles accommodate old wine?

The Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010, initiated comprehensive health reform for the healthcare sector of the United States. PPACA includes strategies to make the American healthcare sector more efficient and effective. PPACA's comparative effectiveness research initiative and the establishment of the Patient-Centered Outcomes Research Institute are major strategies in this regard. PPACA's comparative effectiveness research initiative is one in a long line of federal initiatives to address the rising costs of healthcare as well as to obtain better value for healthcare expenditures. The key question is whether the governance and design features of the institute that will oversee the initiative will enable it to succeed where other federal efforts have faltered. This Article analyzes the federal government's quest to ensure value for money expended in publically funded healthcare programs and the health sector generally. This Article will also analyze what factors contribute to the possible success or failure of the comparative effectiveness research initiative. Success can be defined as the use of the findings of comparative effectiveness to make medical practice less costly, more efficient and effective, and ultimately, to bend the cost curve.     

Severely handicapped infants with life-threatening conditions: federal intrusions into the decision not to treat

In recent years the federal government has attempted to intervene in certain family-medical decisions to withhold treatment from seriously handicapped newborns with life-threatening conditions. Invoking section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against "otherwise qualified handicapped" individuals, the Reagan Administration promulgated regulations allowing federal government investigations of such decisions. Recently, the U.S. Supreme Court upheld lower court decisions invalidating these "Baby Doe" regulations. The federal government's fall-back position is reflected in the Child Abuse Prevention and Treatment Amendments of 1984, requiring states accepting funds under the Child Abuse Prevention and Treatment Act to establish and maintain procedures to assure that cases of medical neglect of handicapped infants are investigated by the states. Although the primary oversight of parental decision-making has been returned to the states where it has traditionally belonged, the federal government's definition of medical neglect of handicapped infants with life-threatening conditions is an ethically inadequate response to the complex needs of the handicapped child, the family, the medical profession, and society as a whole. After examining the relevance of Kantian, utilitarian, and Rawlsian ethical positions, the author contends that an effective governmental policy, capable of enforcement and acceptance by the public, must utilize the strengths of each philosophy and reflect the pragmatism of American society.     

Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation

Despite the impressive body of scholarship dedicated to analyzing litigation involving the Charter of Rights and Freedoms in the Supreme Court of Canada, there remains an incomplete understanding of why these cases come to the Court. Notably absent from the literature is sustained analysis of why governments, the most frequent class of appellant, bring Charter cases to the Supreme Court. Recent work has addressed the decision to appeal by the U.S. federal government and state attorneys general and provides an excellent theoretical starting point. I use case data collected from interviews with federal government lawyers and law reports to test whether the Canadian federal government's decisions to appeal to the Supreme Court of Canada in Charter cases are also "procedurally rational." I conclude that these decisions are primarily shaped by strategic considerations related to policy costs, case importance, reviewability, and the prospect of winning on appeal, regardless of the party in power. In the process, the article further extends the application of strategic decisionmaking theory with regard to law and courts beyond judicial behavior, and beyond the U.S. context.     

Government's role in organ transplantation policy

This paper initially considers ways of thinking about organ transplantation: Should it be treated as a catastrophic disease or as an ordinary and accepted medical procedure? The analysis then shifts to the role the government has played in influencing organ transplantation policy. The federal government's involvement initially stemmed from its role as payer for end-stage renal disease services. In recent years, the rationale for intervention has changed, and the mechanism for implementing regulatory oversight has shifted to a private network run for the government by the United Network for Organ Sharing (UNOS). The government has delegated much policymaking authority to UNOS, although the author demonstrates that this is not required by the applicable legislation. The article raises questions about the relationship between UNOS and the federal government, about potential conflicts between UNOS guidelines and state laws under the Uniform Anatomical Gift Act, and about the ideological stance undergirding much of current federal policy in the organ transplantation arena.     

The false claims act and the eroding scienter in healthcare fraud litigation

This article addresses the federal government's expansive methods in tackling healthcare fraud, particularly in misapplying the False Claims Act. Although tasked with the obligation to curtail the fraudulent submission of Medicare & Medicaid claims, the U.S. government must rein in the current trend to utilize the False Claims Act against smaller medical providers. As the Act's original focus has ebbed in significance, the government has increasingly applied the False Claims Act to circumstances that do not evince actual fraud. In doing so, federal courts have effectively eroded the statute's critical scienter requirement. The federal common-law doctrines of "payment by mistake" and "unjust enrichment" adequately address the payment of non-fraudulent, albeit false, Medicare & Medicaid claims. Yet the federal government pursues these appropriate remedies only rarely and in the alternative, essentially when the government fails under the False Claims Act. Thus, this article argues for reform, calling for a clearer delineation between remedial and punitive measures. In cases involving smaller medical providers, courts should strictly limit the False Claims Act to those instances where fraud is clearly manifest.     

Panel recommends significant changes to federal law against discrimination

In a report released on 23 June 2000, the Review Panel tasked by the federal Minister of Justice with reviewing the Canadian Human Rights Act made some welcome recommendations for improving the Act and the way the Canadian Human Rights Commission functions. Three are of particular significance: the recommendation that "social condition" be added to the prohibited grounds for discrimination listed in the Act; the recommendation that the Canadian Human Rights Commission should have, under its governing legislation, the duty to monitor and report to Parliament and the UN Human Rights Committee on the federal government's compliance with international human rights treaties regarding economic, social, and cultural rights; and the recommendation that "gender identity" should be expressly added to the Act as a prohibited ground of discrimination.     

Mandatory HIV testing used to bar potential immigrants

Last year Canada turned away 75 people with HIV/AIDS because the federal government said that they would place excessive demands on publically funded services. Another 207 people with HIV/AIDS were allowed to enter Canada, mainly because of exemptions to the excessive-demand provisions. HIV/AIDS organizations have objected to the government's policy of mandatory HIV-antibody testing of potential immigrants and have expressed concerns about the way in which excessive demand is calculated.     

Limits on CPP survivor benefits for same-sex couples unconstitutional

On 19 December 2003, the Ontario Superior Court of Justice declared the federal government's Canada Pension Plan (CPP) survivor benefits regime as it applied to same-sex couples unconstitutional. Under the law, survivors in same-sex relationships could not receive benefits if their partner had died prior to 1 January 1998, while no similar restriction was imposed on opposite sex-relationship survivors. In Hislop v Canada, Justice Macdonald found this cut-off date to be unconstitutional because it denied gay and lesbian survivors equality of the law.     

The elderly's access to health care services: The crude and subtle impacts of Medicare changes

Medicare, the federal government's health insurance program for the aged and disabled, has been subjected to a number of legislative and regulatory changes since 1981 aimed at reducing the costs of the program. About a third of the cutbacks have been in activities that directly increase patient cost sharing. Other changes, while aimed at improving efficiency, may also shift costs onto program beneficiaries. This paper estimates the differential impacts of such program changes by age and income of elderly Medicare enrollees and discusses the likely resulting impact on their access to care. Surprisingly, such equity concerns have been largely overlooked in the policy debate concerning cost containment under Medicare.     

Reframing the racial disparities issue for state governments

Although racial and ethnic disparities in health have been on the federal government's agenda since 1985, no policy reforms have significantly reduced disparities. The question arises whether states can effectively address this issue without waiting for solutions from the national government. The purpose of this article is to propose ways of reframing the disparities issue that might give state policy makers more leverage and might strengthen political will to address the issue. I suggest a moral frame based on a concept of distributive justice in which medical care must be distributed according to need. I explain the rationales for such a frame and consider its strategic advantages and disadvantages. In the last section, I suggest some policies based on this framing that are within the power of state legislatures.     

Through the Quarantine Looking Glass: Drug-Resistant Tuberculosis and Public Health Governance, Law, and Ethics

The incident in May-June 2007 involving a U.S. citizen traveling internationally while infected with drug-resistant tuberculosis involved the U.S. federal government's application of its quarantine and isolation powers. The incident and the isolation order raised numerous important issues for public health governance, law, and ethics. This article explores many of these issues by examining how the exercise of quarantine powers provides a powerful lens through which to understand how societies respond to and attempt to govern threats posed by dangerous, contagious pathogens. The article considers historical aspects of governmental power to quarantine and isolate individuals and groups; analyzes the current state of quarantine and isolation law in the United States in light of the recent incident with drug-resistant tuberculosis; and explores global aspects of public health governance and law highlighted by this incident.     

Legal Regulation of the Use of Race in Medical Research

In this article, we discuss current legal restrictions governing the use of race in medical research. In particular, we focus on whether the use of race in various types of research is presently permitted under federal law and the federal constitution. We also discuss whether federal restrictions on the use of race in research ought to be expanded, and whether federal policies that encourage the use of race ought to be abandoned.     

Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?

The United States Copyright Act allows for fair use of copyrighted material under certain circumstances, but federal courts have been inconsistent in rulings on copyright infringement cases in which documentary filmmakers claim fair use. This can be problematic for documentarians, who often use copyrighted materials. The 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use” addressed this inconsistency by providing guidelines for filmmakers. This article analyzes relevant federal cases before and after the statement in which a documentary filmmaker was sued under the Copyright Act for infringement and in which a court addressed the issue of whether the use was fair. A case analysis shows that federal rulings have become slightly more accommodating toward the use of copyrighted material in documentaries and the use of copyrighted video in general since the statement was introduced. The statement's relevance to fair use case law is also examined.     

政务舆情回应策略对政府形象修复的影响 ——情绪认知视角的有调节中介模型

【问题】当前舆情危机事件频发,网络舆情既可以提升政府形象也可以对政府形象造成负面影响,关键在于政府如何应对舆情。舆情事件中政府采取什么样的回应策略才能有效维护和修复政府形象?【方法】本研究从情绪认知视角出发,以公众情绪为中介和以回应策略为调节变量构建了有调节的中介模型,并通过2(事件责任:大、小)×3(回应策略:否认、借口、道歉修正)的组间实验设计进行证实。【发现】研究发现,当公众认为责任大的条件下,采用道歉修正策略(与否认策略、借口策略相比)更能缓解公众情绪,进而修复政府形象;当公众认为责任小时,采用道歉修正策略和否认策略(与借口策略相比)更能疏导公众情绪,进而修复政府形象。【贡献】研究突破了传统SCCT理论基于认知视角探讨形象修复的框架,从情感视角提出即使不改变大众对舆情事件起因的归因认知,通过有效回应来疏导公众情绪,也能达到修复政府形象的目的。     

Airway obstruction by a ball.

A toddler died as the result of choking on a toy ball that occluded his upper airway. The size of this toy was within the federal safety standards for use by children under the age of three years. Though it has been recognized since 1987 that the minimum safe diameter set by the Federal Hazardous Substances Act may be too small, no change has been made to the regulation (1). In 1995 a comprehensive review of asphyxia related to the size of the foreign object found 4.44 cm diameter and 7.62 cm length a more comprehensive standard (1). Currently federal warning labels are required on some items that contain balls smaller than 4.44 cm to prevent use by children less than three years of age (2). The small parts fixture test in use by the federal government is available as a safety tool for parents to use at home. Unfortunately the "safe" diameter of 3.17 cm is too small to provide assurance that a toy is not a choking hazard.