Boston University School of Law

Health Law Newsletter Fall 2011

Faculty News

Prof. Outterson writes about health care reform for leading blog

Kevin OuttersonIn November, Associate Professor of Law Kevin Outterson joined a leading health economics blog, The Incidental Economist. The blog is widely followed, with nearly 900,000 page views in the past year, ranking it 15th for traffic among blogs edited by law professors. “Many times there are things you want to say that don’t rise to the level of an 80-page law review article,” he said. “With the blog, I can give a very clear 500-word description about something and be done in an hour.”

Outterson and his co-bloggers deliver research-oriented commentary related to health care reform.  “We’re trying to take public health policy research and make it accessible at the moment it’s needed,” he said. “When something hits the news we want to be able to amplify the peer-reviewed research and describe it to people who aren’t experts in a clear, relevant and concise way. We’re talking to policy experts, congressional staff and reporters.”

Cited by the U.S. Supreme Court

Outterson’s work was cited by the U.S. Supreme Court in Sorrell v. IMS Health Inc., a pharmaceutical data-mining case decided in June 2011. 

The case, for which Outterson filed an amicus brief on behalf of the New England Journal of Medicine and other medical societies, concerned a Vermont law that prevented pharmacies from providing so-called “data miners” with details about the drugs that individual doctors prescribe. Data miners use such information to help drug manufacturers’ salespeople target specific doctors.

“Data mining offends the privacy of the physician and also permits companies to identify particular patients and communities without consent,” Outterson wrote in the amicus brief.

By a 6-3 vote, however, the Court ruled that the law restricted the data-mining companies’ freedom of speech. Justice Stephen Breyer, who was joined in his dissenting opinion by Justices Ruth Bader Ginsburg and Elena Kagan, argued that the law reasonably regulated commercial activity and didn’t impinge on commercial free speech. Breyer’s dissent cited an Outterson article, co-authored with Ilona Volker, titled "New Legislative Trends Threaten the Way Health Information Companies Operate."

Outterson believes the case has significant implications for privacy.  “The Court raises new constitutional hurdles for public health regulations by focusing on speech rather than privacy. This case could be a very powerful weapon in the hands of companies to defeat FDA rules restricting off-label promotion,” he said.

Constitutional Health Care Litigation Class

In the classroom this year, Outterson will be co-teaching—with Associate Professor of Law Abigail Moncrieff—a new, unique seminar titled Constitutional Health Care Litigation, in which students will have an opportunity to write amicus briefs challenging or supporting the Affordable Care Act. Students may work on behalf of real clients when preparing and filing the amicus briefs.

Major Antibiotic Resistance Symposium at BU Law

On October 3rd and 4th, BU Law will co-host a major antibiotic resistance symposium, Antimicrobial Resistance: Biology, Population Dynamics and Policy Options, sponsored by the Center for Communicable Disease Dynamics at the Harvard School of Public Health. Outterson will lead the antibiotics policy options session at the conference.

Academic Presentations

In recent months, Outterson has presented at:

  • The Globalization of Health Care: Legal and Ethical Challenges, Harvard Law School
  • The World Health Organization Consultative Expert Working Group on R&D, Geneva, Switzerland
  • Yale Health Law Society Meeting, Yale Law School
  • Vaccine Development Class, Massachusetts Institute of Technology

Recent Media

Outterson’s commentary has not been limited to conferences. Radio New Zealand interviewed him in May for a story about tensions in the Trans-Pacific Partnership trade talks over how the nine-country deal might impact U.S. pharmaceutical companies. Later that same month, he was interviewed by New York City Public Radio on Vermont’s single-payer health care reforms.

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