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Back Issues and Articles
Back Issues and Articles

Table of Contents
Table Of Contents
AJLM - [PDF] (Free Download)
Articles: 483 Autism in the U.S.: Social Movement and Legal Change Daniela Caruso 540 Can We Handle the Truth? Legal Fictions in the Determination of Death Seema K. Shah & Franklin G. Miller 586 Patient Data: Property, Privacy & the Public Interest Marc A. Rodwin notes and comments 619 Prometheus and Bilski: Pushing the Bounds of Patentable Subject Matter in Medical Diagnostic Techniques with the Machine-or-Transformation Test Stephen Pessagno 652 A Reasonable Time, Place and Manner Restriction: Medicare Reimbursement Law Should Require Pharmacists to Fill Prescriptions Regardless of Personal Belief Diana Snyder 682 Recent Case Developments Daniel Park 686 Recent Case Developments Ramon Miyar
Articles
Autism in the U.S.:Social Movement and Legal Change
Daniela Caruso - [PDF]

ABSTRACT: The social movement surrounding autism in the U.S. has been rightly defined a ray of light in the history of social progress. The movement is inspired by a true understanding of neuro-diversity and is capable of bringing about desirable change in political discourse. At several points along the way, however, the legal reforms prompted by the autism movement have been grafted onto preexisting patterns of inequality in the allocation of welfare, education, and medical services. In a context most recently complicated by economic recession, autism-driven change bears the mark of political and legal fragmentation. Distributively, it yields ambivalent results that have not yet received systemic attention. This article aims to fill this analytical vacuum by offering, first, a synoptic view of the several legal transformations brought about or advocated for by the autism movement and, second, a framework for investigating their distributive consequences.
Can We Handle the Truth? Legal Fictions in the Determination of Death
Seema K. Shah & Franklin G. Miller - [PDF]

ABSTRACT: Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death.
Patient Data: Property, Privacy & the Public Interest
Marc A. Rodwin, J.D., Ph.D. - [PDF]

I. INTRODUCTION: Changes in technology sometimes raise important public policy choices and require that we clarify key values and reexamine legal concepts. Such is the case with the development of electronic medical records (EMRs), which facilitate obtaining patient data from provider and insurer records. EMRs expand our ability to tap patient data and thereby create great potential benefits as well as risks. This new technology requires that we clarify the ambiguous property interests in patient data. How the law defines ownership of patient data will shape whether its benefits can be developed and also affects patient confidentiality.
Notes and Comments
Prometheus and Bilski: Pushing the Bounds of Patentable Subject Matter in Medical Diagnostic Techniques with the Machine-or-Transformation Test
Stephen Pessagno - [PDF]

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
A Reasonable Time, Place and Manner Restriction: Medicare Reimbursement Law Should Require Pharmacists to Fill Prescriptions Regardless of Personal Belief
Diana Snyder - [PDF]

[T]he [First] Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.
Recent Case Developments
Daniel Park - [PDF]

Third Circuit Bars Wrongful Life Claims Involving Genetically Defective Sperm Donation — D.D. v. Idant Laboratories1 - The United States Court of Appeals for the Third Circuit affirmed the District Court for the Eastern District of Pennsylvania's decision to dismiss various tort and contract claims involving genetically defective sperm alleged by plaintiff Donna Donovan ("Donovan") on behalf of herself and her daughter, Brittany. The district court denied Donovan's claims as time-barred under Pennsylvania's statute of limitations and denied Brittany's claims for failure to state a claim under New York law.2,3 The original action against Idant Laboratories arose from its allegedly negligent failure to recognize one of its semen donors' detectable Fragile X Syndrome.4 Relying on Idant's representations as to the exceptional safety of its semen and the rigor of its donor screening process, Donovan selected Donor G738's semen for artificial insemination. According to Donovan's allegations, Idant informed her that Donor G738's tests "did not indicate that he had any genetic defects or a history of mental retardation."5 Donovan successfully inseminated Donor G738's semen and gave birth to Brittany in 1996. Soon afterwards, Donovan confirmed Brittany's abnormal and delayed development. Subsequent evaluations in 1997 and 1998 by various hospitals, laboratories, and physicians established Brittany and Donor G738 as Fragile X carriers. Donovan does not carry Fragile X.
Recent Case Developments
Ramon Miyar - [PDF]

Federal Organic Foods Production Act Does Not Preempt State Claims that Are Unrelated to Organic Producer Certification Process— In re Aurora Dairy Corp. Organic Milk Mktg. and Sales Litig.1 — The United States Court of Appeals for the Eighth Circuit held that a federal statute,2 which establishes uniform certification and accreditation rules for organic foods producers and certifying agents, preempts only those state consumer law claims that specifically challenge the federal organic foods certification process.3 Congress enacted the Organic Foods Production Act of 1990 (OFPA) in order "(1) to establish national standards governing the marketing of certain agricultural products as organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in fresh and processed food that is organically produced."4 The OFPA specifies that "'a person may sell or label an agricultural product as organically produced only if such product is produced and handled in accordance with' the OFPA."5 It requires producers marketing agricultural products as "100% organic," "organic," or "made with organic" ingredients to obtain United States Department of Agriculture (USDA) certification or face a $10,000 fine