JHLI Newsletter: Jaharis Scholarly Impact

Wendy Epstein, Faculty Director and Professor of Law

In “Private Law Alternatives to the Individual Mandate,” forthcoming in the Minnesota Law Review, Professor Epstein considers how to prompt younger, healthier individuals to buy health insurance. While there is excitement on the left about a move to universal health care, even the most optimistic concede that such a change is years away. Meanwhile, millions of Americans are uninsured—a problem made worse by the recent repeal of the individual mandate penalty.

The penalty was supposed to reduce the number of uninsured, and it did to a degree. But while other mechanisms to prompt insurance purchase remain in place (like the premium tax credits), the repeal of the mandate penalty means that healthy people can now wait to buy insurance until they get sick. The number of (healthy) uninsured will rise, leaving insurers to cover a sicker risk pool. Insurers will undoubtedly respond by raising premiums.

But it is not only the mandate repeal that contributes to the uninsured problem. Even when the mandate was enforced, millions of Americans still lacked coverage, leading to worse health outcomes and adverse spillover effects for the rest of the population that ultimately bears the cost of uncompensated care.

Professor Epstein’s article tackles the uninsured problem by looking to private law mechanisms to prompt insurance uptake, particularly of the coveted young and healthy population. It considers both neoclassical economic theory and principles of behavioral economics to better understand what motivates (and deters) the purchase of health insurance. It then explores economic incentives and “nudges” that encourage healthy individuals to sign up for policies without forcing them to do so.

For example, Professor Epstein suggests co-opting practices previously deployed for nefarious purposes to prompt behavior that policy now seeks, such as offering low introductory rates, long-term contracts, and limited exit rights. Other options include the sale of return of premium-style policies or policies with a generosity frame, simplified plan offerings, or automatic enrollment of the uninsured with a right to opt-out. These solutions—many of which would not require congressional action—hold the promise of increasing insurance uptake and lowering premiums without removing choice or requiring substantial government action.

For further discussion, see Wendy Netter Epstein, Private Law Alternatives to the Individual Mandate, 104 Minn. L. REV . _ (2020).​

Joshua Sarnoff, Professor of Law

On June 4, 2019, Professor Josh Sarnoff testified before the Intellectual Property Subcommittee of the Judiciary Committee of the U.S. Senate on a pending legislative proposal to reform patent law subject matter eligibility doctrine. See https://www.judiciary.senate.gov/meetings/the-state-of-patent-eligibility-in-america-part-i​. The bill would amend Section 101 of the Patent Act to dramatically expand what can be patented and would make additional changes to Section 112 in interpreting functional claiming language. After having spent decades researching these topics, Professor Sarnoff was asked to testify to make suggestions to amend the draft bill.

His testimony emphasized the “root causes” of the legal uncertainty that the legislative effort was designed to address—namely, lack of legislative specificity and inconsistency in judicial decisions. But perhaps the most important aspect of Professor Sarnoff’s testimony was his explanation for why legislation should not seek to provide private property rights for discoveries of nature, of scientific principles, and of “abstract ideas” (understood as fundamental concepts), all of which should be free for everyone to use. His published academic work has explained why such pre-existing aspects of our world were historically viewed as God-given things, and thus why making private property out of such natural, scientific, and fundamental discoveries would have been seen as a religious sin and as unjustly enriching the discoverer. He also pointed out that providing patents for claimed inventions of new discoveries of nature and science and abstract ideas “as such” might be held to be unconstitutional.

The proponents of the legislation have stated publicly that it was never their intention to authorize patents for discoveries of science, nature, and abstract ideas. But we have yet to learn if and how the draft legislation will be revised to avoid that result, and thereby avoid constitutional challenges as applied in particular cases.

Valerie Gutmann Koch, Jaharis Faculty Fellow

Sharon Bassan, Jaharis Faculty Fellow

In her forthcoming book, Regulating Cross-Border Surrogacy, Sharon Bassan writes about the regulation of surrogacy when the involved parties cross national boundaries. Regulating Cross-Border Surrogacy argues for the reasons to regulate the practice, describes different regulatory mechanisms (national vs. international), critiques suggested regulatory models, and proposes a new model – the shared responsibility model. The book project approaches these questions from both a philosophical and legal perspective.

Bassan describes the need for regulation to legitimize the practice of cross-border surrogacy. If cross-border surrogacy is permitted, or at least not forbidden, it discusses whether some failures require monitoring and regulation.

The second part of the book contemplates the global justice implications of the practice. It lays a conceptual framework that requires national responsibility to cross-border practices and discusses national regulatory tools to address cross-border surrogacy practices, including a detailed look at the latest rulings of the European Court of Human Rights and the Israeli example for a unilateral legal intent to address cross-border surrogacy. Part three looks into two different optional regulatory models: labor law and human rights. Each chapter independently examines the philosophical rationales behind each model, the model’s promises, and its shortcomings.

Finally, Regulating Cross-Border Surrogacy, suggests a shared responsibility regulatory model. Philosophically, it provides a theoretical framework of associative duties, which emanate from special sorts of cooperative relationships, as a tool to promote global justice concepts and responsibilities to fit new, modern needs. Legally, it offers a proactive shared responsibility model, which addresses the unique aspects of the phenomena in a more fragmented way, each according to the legal tools and mechanisms that fit it. It enables a comprehensive regulation that provides safety and basic human rights safeguards, but also aims to ameliorate women’s expectation for recognition and acknowledgement of their contribution.​

Jaharis Faculty Fellow Alumni

Ana Santos Rutschman, 2016-2018 JHLI Faculty Fellow, Assistant Professor of Law, Saint Louis University School of Law

Ana Santos Rutschman published “The Vaccine Race in the 21st Century” with Arizona Law Review and signed a contract with Cambridge University Press for a book entitled “Vaccines as Technology: Innovation, Barriers and the Public Interest” (2021). Her commentary pieces appeared in Health Affairs Blog and The Conversation, and were reprinted in newspapers including the Chicago Tribune. She presented her work widely both domestically and abroad, including at DePaul, Harvard, Stanford and the University of Copenhagen.

Charlotte Tschider, 2018-2019 JHLI Faculty Fellow, Visiting Assistant Professor of Law, Nebraska College of Law

We are thrilled to announce that Charlotte Tschider completed her fellowship and is a Visiting Assistant Professor at the University of Nebraska’s College of Law. During Charlotte’s time as a Jaharis Faculty Fellow for the DePaul University College of Law (2018-2019), she had the unique opportunity to connect with many of her national and international colleagues and teach cutting-edge courses at the intersection of health law, intellectual property, and information technology.

When Charlotte joined DePaul University, the College of Law had recently embarked on a new focus for students at the intersection of health law and technology, developing specific courses in cybersecurity and data protection, as well as building out a plethora of new health law offerings. She had the unique opportunity to teach two of these courses -- Food and Drug Law, which incorporated many of my specific research interest in medical device regulation, and Healthcare Privacy and Cybersecurity, which integrated education in the Health Insurance Portability and Accountability Act, international data protection standards, Food and Drug Administration cybersecurity requirements, and compliance program development. In these classes, students began to identify key overlaps and relationships between first-year courses, administrative law, and the practical aspects of maintaining compliance for the healthcare and insurance industries.

During her time at DePaul Law, she also engaged in many international and domestic conferences focused on this important intersection. In January 2019, Charlotte presented at the World Precision Medicine Conference on the role of big data in medical research, and in July 2019, she presented on artificial intelligence liability and global data protection laws at the International Conference on AI in Healthcare. I was also invited to participate in a symposium on Trust and Privacy in the Digital Age at the Washington University School of Law, part of their launch of The Cordell Institute for Policy in Medicine & Law, and Hofstra University’s symposium on Artificial Intelligence in Healthcare: The Ethical, Legal and Medical Implications.

We wish Charlotte much success in her new endeavor.​

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