Boston University School of Law

In This Issue


Faculty Scholarship updates

George J. Annas weighs in on critical health law issues

George AnnasProfessor George J. Annas, JD, MPH, was a featured author in the 200th anniversary edition of the New England Journal of Medicine in August. "Doctors, Patients, and Lawyers—Two Centuries of Health Law" discusses the evolution of both health law and the practice of medicine since the journal's founding in 1812.

Annas also weighed in on the use of plastinated human remains in public exhibitions such as Body Worlds. "Lifelike Humans: Playing Poker with James Bond and Ted Williams" appears in Controversial Bodies: Thoughts on the Public Display of Plastinated Corpses, a collection of essays edited by John D. Lantos, M.D. (Johns Hopkins University Press, 2011).

In "The Two-Eyed Cyclops: Metaphor and Narrative in American Medical Research Policy," published in the journal Genre: Forms of Discourse & Culture (Duke University Press), Annas looks at the use of metaphor and narrative in the "Obamacare" health insurance reform debate and in medical research.

In July, Annas delivered the opening address at the UCL Current Legal Issues Colloquium 2012: Law and Global Health, in London, England. In his remarks, entitled "The Affordable Care Act in the US Supreme Court: Ideology, Politics, and the Right to Health," Annas contended that arguments about health care should recognize it is a human right and not be confined to the "arena of abstract Constitutional principles."


Wendy K. Mariner lends her voice to the ACA debate

wendy marinerProfessor Wendy K. Mariner has written and spoken extensively this year on the Affordable Care Act and its implications, including:

Mariner continues to chair the legal and policy work group of the Massachusetts Health Information Technology Council Advisory Committee. Her group is working to devise policies to protect privacy and promote security for the statewide health information exchange.

Additionally, Mariner and Annas are revising their casebook Public Health Law, which should be available for use in the fall of 2013.


Fran Miller named Faculty Lead for Scholars in Residence Program of the Network for Public Health

fran miller
Professor of Law Emerita Fran Miller recently was named Faculty Lead for the new Scholars in Residence program of the Network for Public Health Law and the Robert Wood Johnson Foundation. The program places legal scholars within public health agencies for six months to assist in solving a specific public health issue. The agencies benefit from the scholars' legal expertise, and the scholars gain field experience that enhances their teaching and scholarship.

Meanwhile, Miller is teaching food and drug law this fall, her 45th year teaching law at BU. In the spring semester, she will teach at the William S. Richardson School of Law at the University of Hawaii at Mānoa, her sixth year at that school.


Abigail R. Moncrieff publishes on "freedom of health"

abby moncrieff
Professor Abigail R. Moncrieff examined whether direct health care rationing—such as that envisioned under so-called "death panels"—would be a constitutional exercise of governmental power or a violation of a constitutional "freedom of health" in her article "The Freedom of Health" in the University of Pennsylvania Law Review (2011).

Her additional commentary on the ACA litigation included:

Moncrieff will spend this fall as a visiting professor at the University of Pennsylvania Law School.


Kevin Outterson co-authors with colleagues, students

kevin outterson
Prof. Kevin Outterson explores the Supreme Court's historic "Obamacare" decision and what it means for Medicaid in particular and health law in general in "Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases," with Nicole Huberfield & Elizabeth Weeks Leonard. The article will be published in January in the Boston University Law Review. The article builds on arguments articulated by Outterson and colleagues in an amici brief that anticipated the key remedy in the court's Medicaid decision. While most of the public focus has been on the Commerce Clause, these scholars conclude that the Medicaid decision will have much more important long-term impact.

Outterson continues his work on the topic of antimicrobial resistance. He has been appointed to a Centers for Disease Control and Prevention task force on antimicrobial resistance. His work focuses on how intellectual property law and other laws can unintentionally promote resistance to antibiotics. Additionally, he is a member of a joint task force of the Brookings Institution and the Food and Drug Administration on development of new antimicrobial drugs. "If our work is successful, then tens of thousands of people will avoid infection by an untreatable microbe," he said.

Lastly, Outterson has written two articles with former students. Shoshana Speiser and her former professor examined ways in which state and federal governments could modify their tax codes to regulate drug marketing in ways that don't violate the First Amendment. Their article, "Deductions for Drug Ads? The Constitution Does Not Require Congress to Subsidize Direct-To-Consumer Prescription Drug Advertisements," appeared in the Santa Clara Law Review (2012). The Pepperdine Journal of Business, Entrepreneurship & the Law published "Agents Without Principals: Regulating the Duty of Loyalty for Nonprofit Corporations Through the Intermediate Sanctions Tax Regulations," co-authored with Carly Eisenberg.


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Special features

Claiming a Place in Health Care History: Law class brief cited as Supreme Court upholds health law

Two School of Law professors and their students get wee bragging rights for yesterday's Supreme Court decision upholding most of President Obama's health care law.obamacare supporters cheer

The ruling partly relied, in at least one justice's mind, on one of several briefs filed by Constitutional Health Care Litigation students and their instructors. The briefs defended the Affordable Care Act (ACA), which will expand health insurance to an estimated 30 million Americans. In her concurrence with Chief Justice John Roberts' majority opinion, Associate Justice Ruth Bader Ginsburg, addressing opponents' arguments that states and not the federal government should work to insure Americans, quoted the brief: "Out-of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State's efforts to improve its health care system through the elimination of uncompensated care."

"Facing that risk," Ginsburg concluded, "individual states are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all states' best interests. Congress's intervention was needed to overcome this collective-action impasse."

Kevin Outterson and Abigail R. Moncrieff, both Law associate professors, developed the class, part of the school's highly regarded health law program. Moncrieff yesterday lauded the "major victory for the nearly 100-year-long political effort to improve the nation's health care system." (Theodore Roosevelt proposed national health insurance in his 1912 Progressive Party presidential campaign.)

The 5-4 Court decision upheld the health law's linchpin, the "individual mandate" that will require Americans to buy insurance or pay a penalty. The justices dealt a blow to one part of the law, its expansion of Medicaid, the federal-state program paying health expenses for poor people. The Court gave states some wiggle room to avoid the expansion without paying the penalties the law would have imposed.

The surprising lineup in the Court's decision found conservative Roberts ruling for the law, while swing-vote Justice Anthony Kennedy voted to strike it down. Yet there's a visible philosophy undergirding Roberts' judicial approach, says Graham Wilson, a College of Arts & Sciences political science professor and department chair. In another case before supreme courtthe Court this week, Roberts argued that life in prison without parole for minors was constitutional and that "the judgment on that issue should be made by legislators, not the Court," Wilson says. "He has with praiseworthy consistency said that the health care issue also is to be settled in the democratic political, not judicial, arena."

That's because the decision to uphold Obama's signature legislative achievement—coverage for millions of uninsured people that has eluded presidents since Franklin Roosevelt—shifts opponents' hopes onto GOP presidential candidate Mitt Romney, who has vowed to repeal what critics dub Obamacare. In a rare break from those pundits stating the blatantly obvious (the ruling was a victory for Obama), Tobe Berkovitz, a College of Communication associate professor of advertising, calls the decision "a gift to the Republicans."

Citing polls showing the law's unpopularity with a majority of Americans, Berkovitz says the Court's reasoning in the case—that the individual mandate's penalty is a tax and therefore within Congress' constitutional right to levy—"plays into the Republican meme that Obama and his liberal minions in the House and Senate love taxing the American people."

Wesley Yin, a CAS economics assistant professor, disagrees. (He begins a one-year stint in August as senior health care economist on Obama's Council of Economic Advisers.) While economists have long regarded the penalty as a tax and were unsurprised by Roberts' reasoning, Yin says, Obama has not really raised taxes via the law, because "buying health insurance, as the vast majority of people already do, negates the penalty completely." Moreover, he says, the law makes many lower-income Americans eligible for tax credits to buy insurance, rather than subjecting them to tax hikes.

Defenders of the mandate have argued that without a requirement to have all Americans pay into the insurance pool, the law's guarantee of coverage to the sick would be unaffordable. But while the mandate is the most effective way to get that money, there are nonmandatory "carrots," such as premium subsidies, that could encourage healthy people to buy insurance, Yin argues. If Romney is elected and repeals the mandate, he says, he will have to ponder those carrots while keeping the guaranteed coverage for the sick, which has wide public support.

Bottom line after the decision: "This is clearly a win for President Obama's first-term legacy," says Yin. "However, he'll need to articulate the tangible benefits of the ACA to the American people more clearly than he has in the past, a task made more difficult by what I expect will be a Republican effort to cast Obama as the architect of a ‘bait and switch' tax on Americans."

This story originally appeared in BU Today.


Orly Rachmilovitz: BU Law's newest Health Law Scholar

orly rachmilovitz
Orly Rachmilovitz

When Orly Rachmilovitz came to the United States to study for her LL.M. in 2006, she was still searching for her foothold among the many academic topics that interested her. Then, one of her professors took her under his wing, gave her focus and confidence, and opened up a world of opportunities and success in scholarship.

"Great teachers can do wonders, and that's why I'm so passionate to teach," she said, recounting the story.

Rachmilovitz will have her own chance to play the role of life-shaping mentor as BU School of Law's newest Health Law Scholar, a two-year post that prepares candidates for full-time, tenure-track positions. Rachmilovitz will research, write and teach in her areas of interest—mental health, sexuality and family law.

"I'm very much committed to helping students learn about social justice and think about how the law can help empower disadvantaged groups," she said.

Rachmilovitz's journey to BU began at the University of Haifa, Israel, where she studied psychology and law as an undergraduate. She earned her LL.M. from the University of California at Los Angeles School of Law, and went on to the University of Virginia School of Law to study for her S.J.D. While writing her dissertation she was a visiting law fellow at The Williams Institute at the UCLA School of Law.

Her dissertation explored one of her special areas of expertise: family conflicts stemming from parents' conformity pressures on children's identities, with a focus on children's sexual orientation and gender identity.

Rachmilovitz plans to highlight those issues and others this spring in the sexual health and reproduction seminar she will teach. "The class is going to give students a great foundation, introducing the basics of law and sexuality, and examining the directions in which sexual health law is heading," she said. Meanwhile, this fall Rachmilovitz is teaching a mental health law seminar.

Her transition to BU has been seamless, a fact she attributes to faculty support. "They seem just as invested as I am in me doing well at BU and beyond," she said. "A career in legal academics is very competitive and becoming more so, so it's great to know that this institution is backing me up."

When Rachmilovitz considers her circumstances – holding a sought-after position at a leading law school with a top-ranked health law program in a city with some of the world's best universities, teaching hospitals and medical institutions—her good fortune is not lost on her.

"I feel incredibly lucky," she said.

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In the classroom

Class profile: Real-world lessons in health law transactions

gavel on bookBoston University health law students are gaining an insider's perspective on the health care business in a unique Health Law Transactions seminar led by Profs. Daniel T. Roble and Jeffrey L. Heidt.

Students hear first-hand from attorneys and business people who have led or are leading the execution of complicated transactions making health news headlines. With access to decision-makers, students learn how the deals came together, what obstacles were overcome, and why certain compromises were made.

"We're teaching students a more practical, real-world approach to what it entails to be a health care transaction lawyer in today's world," said Roble. "Number one, you have to understand the regulatory underpinnings of any transaction and, number two, you also have a whole variety of different transactions that you could encounter."

Heidt added that political and practical business considerations often override the purely legal aspects of a situation and can produce unexpected results. "Human nature will trump the textbooks every time," he said.

The class enables Roble and Heidt to impart more than 80 years of experience to the next generation of health care lawyers. Roble joined Ropes & Gray as its second health care lawyer in 1975, eventually chairing the group and expanding it into a national practice with more than 60 attorneys. Heidt did the same at Choate, Hall & Stewart, then joined Roble at Ropes for six years before moving to Verrill Dana LLP.

Roble first became involved with the Health Law Transactions seminar as a guest lecturer at the invitation of Prof. Kevin Outterson. Roble caught the teaching bug, and began participating in more classes. As he approached Ropes & Gray's mandatory retirement age of 65, he agreed to take over the class, and enlisted Heidt, who had left Ropes a year earlier, to co-teach with him.

Students study a number of different types of transactions involving a range of organizations, including not-for-profit teaching and community hospitals and health systems, managed care organizations, and medical device companies.
Roble and Heidt then recruit the lawyers and business people involved to describe to students the behind-the-scenes factors that influenced the transactions' outcomes. In addition to participating in class presentations by experts, students write a paper on a hypothetical transaction, identifying and analyzing the regulatory issues involved.

The spring semester course introduces students to the environment of consolidation and cost-containment that will shape their health law careers.

"This push toward reduced cost and toward quality of care will continue to accelerate," said Roble. "The students who have been working in a theoretical context will take their theoretical knowledge and apply it to real health care transactions.'"

Student feedback has been overwhelmingly positive. "The students are all very bright and hard-working. Jeff and I appreciate that," he said. "We really love to teach."


The Supreme Court and "Obamacare": A teachable moment for BU Law students

rachel smit

Rachel Smit ('13)
Rachel Smit ('13) has done something few law school graduates can match. And so have a dozen other BU Law students.

Each participated in the writing of amicus briefs submitted to the U.S. Supreme Court this year as part of landmark litigation over "Obamacare," the Affordable Care Act (ACA).

Smit and her classmates took on the challenge in Constitutional Health Care Litigation, a seminar within BU Law's health law program, which is ranked among the top 5 in the country by U.S. News & World Report.

"It's something that a lot of people don't have a chance to do in law school," said classmate Kyle Thomson ('12). "It was a unique opportunity and I really do feel I came away from it having an intimate knowledge of the amicus process."

"It's exciting to work on a brief that might alter someone's thinking on such an important issue," added Smit, who worked for three years at a state health policy institute prior to enrolling at BU Law. "Because the ACA makes health insurance accessible to many people with low incomes, I was glad to have an opportunity to defend the law."

Conceived by Associate Professors Abigail R. Moncrieff and Kevin Outterson, the class provided students with an opportunity not only to learn the practical skills needed to prepare a Supreme Court brief but also to participate in making American legal history.

Unlike students in many law schools' appellate writing classes, BU Law students worked for actual clients, recruited from among the many groups with an interest in the case's outcome. The clients included the Jewish Alliance for Law & Social Action; Prescription Policy Choices, a nonprofit educational and public policy organization; and Health Care for All, a key advocate for the enactment of the 2006 Massachusetts state health reform law. The 14 students divided into four groups, with each professor coaching two teams through the process.

The groups met formally once a week to review issues and discuss questions – at least at the beginning. But when the Supreme Court unexpectedly announced that it would hear oral arguments in the ACA case in March, the calendar compressed, the sense of urgency heightened and work accelerated. It was a lesson in the vagaries of real world litigation.

"We were working on revisions right up to the last minute," said Smit, who took on the exacting task of "bluebooking" her group's brief, ensuring all citations were formatted perfectly.

Although class members did not attend oral arguments in Washington, they followed them closely and discussed them in detail, a process that Smit found fascinating. "I was very surprised at some of the questions the justices asked," she said. "It was clear that explaining health economics to the justices in a clear way was one of the challenges that the Solicitor General faced."

Both Smit and Thomson say the experience honed their writing skills, developed their ability to interpret complex legislation and helped them more fully appreciate the appeals process. That can only help when it comes to landing future employment, they said.

Moncrieff says the hands-on seminar could work again given a case with sufficient constitutional questions and enough interested parties. Students' reactions affirmed the value of seizing a teaching moment in the midst of an historic constitutional debate.

As Moncrieff noted, "My impression was that the students thought the class was very, very cool."

Related Feature Story: BU Law Students' Amicus Brief Cited by Supreme Court in 'Obamacare' Ruling


Recent & Upcoming Events

Upcoming Health Law events at BU Law

Monday, October 15, 2012

"The Least Bad Death: Who Decides?" with keynote speaker Dr. Marcia Angell

bu law pike lecture The ninth annual Pike lecture will feature keynote speaker Marcia Angell, MD, senior lecturer in global health and social medicine at Harvard Medical School, and editor-in-chief, emerita, New England Journal of Medicine. Dr. Angell will discuss the initiative petition on the November 2012 ballot (question two), which would legalize physician-prescribed, end-of-life drugs for terminally ill patients with a prognosis of six months or less. A prominent authority on medical ethics and health policy, Angell graduated from Boston University School of Medicine in 1967, and trained in both internal medicine and anatomic pathology before joining the NEJM editorial staff in 1979. She has authored numerous articles, as well as several books, and is a frequent contributor in popular media on issues of medical ethics. Dr. Angell is a member of the Association of American Physicians, the Institute of Medicine of the National Academy of the Sciences, and the Alpha Omega Alpha National Honor Medical Society, and is a Fellow of the American College of Physicians.

Friday, January 25, 2013

"The Future of Global Tobacco Control: Current Constitutional and Treaty-Based Challenges," the American Journal of Law & Medicine 2013 Symposium

The rapidly evolving international landscape for tobacco regulation has prompted ongoing control litigation from various national and global entities through national constitutions, bilateral investment treaties and TRIPS. Recent examples abound, from plain-packaging legislation in Australia to the World Trade Organization's ruling against the U.S. ban on clove cigarettes. The nuanced geographic and legal contexts complicate global regulatory control, which plays an important role in balancing the interests of public health and international trade. What are the current legal challenges to global tobacco regulations, and what additional obstacles lay ahead?

This symposium will examine the various legal challenges faced by different countries in advancing global health goals within the restrictions posed by trade agreements, domestic laws, and other issues involving takings and intellectual property. Further, we will examine the ongoing tobacco regulation in the United States, including the controversial federal requirement that would force tobacco companies to picture large, graphic images on their cigarette packaging.


Recent Health Law events held at BU Law

Thursday, September 27, 2012

"The Supreme Court's Opinions on Obamacare"

obamacare panel bu law The Supreme Court's 5-4 decision to uphold President Obama's Affordable Care Act marked a major milestone in U.S. health care, sparking heated debate among policy-makers and interested citizens on both sides of the aisle. In this panel—co-sponsored by the American Constitution Society, Health Law Association and Federalist Society—BU Law professors Leonard Glantz, Wendy Mariner and Kevin Outterson examined the case's nuances, the justices' varying opinions, and what the ruling ultimately means.

Monday, April 23, 2012

"The Role of Law in the Epidemic of Harmful Side Effects from Prescription Drugs: The Risk Proliferation Syndrome," a lecture by Donald Light

Prescription drugs are one of the most beneficial parts of modern medicine. Yet they have become the major iatrogenic source of illness and death. This presentation explained the Risk Proliferation Syndrome that centers around legal and regulatory practices harmful to society, science, medicine, and patients.

Saturday, January 28, 2012

"The American Right to Health: Constitutional, Statutory, and Contractual Healthcare Rights in the United States," the American Journal of Law & Medicine 2012 Symposium

ajlm 2012 symposium eviteAs part of an annual special issue of the American Journal of Law & Medicine, last year's symposium examined Americans' healthcare rights and freedoms and their potential impact on the Supreme Court's consideration of whether the Patient Protection and Affordable Care Act (ACA) is constitutional. Opponents of the ACA argue that the new law violates structural constitutional constraints. Yet, concerns voiced in the media and in electoral campaigns have focused on the law's substance, particularly the notion that the government could compel individuals to buy health insurance. The symposium, hosted at BU Law, explored questions about the interplay of structure and substance in the ACA and the litigation surrounding it.


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past issues The Health Law Newsletter is your source for all health law-related updates at BU Law. You can find all these highlights and more on the BU Law Web site.