Jaharis Scholarly Impact

• 

  Wendy Netter 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).

• 

  Mark C. Weber
  Vincent DePaul Professor of Law

  In “Of Immigration, Public Charges, Disability Discrimination, and, of All Things, Hobby Lobby,” which is forthcoming in the Arizona State Law Journal, Professor Weber contends that federal disability discrimination law conflicts with and thus supervenes the Trump Administration’s new regulations changing the standards for excluding immigrants from the United States on the basis of their likelihood of becoming a public charge. The new regulations use an explicit disability-related criterion that is not required by the statutory admission standards and will have an unjustified negative impact on immigrants who have disabling conditions. The Essay draws a comparison to Burwell v. Hobby Lobby, Inc., a 2014 case in which the Supreme Court invalidated a federal regulation on the ground that it conflicted not with its enabling legislation but with an unrelated federal statute, the Religious Freedom Restoration Act. The article will appear in the Journal’s Spring 2020 issue.

  Professor Weber also has been active lecturing on disability issues around the country, presenting “Emerging Trends in Disability Discrimination in Employment” at the Illinois Human Rights Commission on October 21, 2019; “Special Education Law in Review” at Loyola University Chicago School of Law on June 26, 2019; “Privacy Protection and Disability Discrimination in a Social Context” at the Law and Society Association Annual Meeting in Washington, D.C. on June 2, 2019; “Disability Rights and DHS’s Proposed Public Charge Exclusion Rules” at the National Federation of the Blind Jacobus tenBroek Disability Law Symposium in Baltimore on March 28, 2019; and “Special Education Law Training for Hearing Officers, Mediators, and Complaint Investigators” at the Texas Education Agency, Austin, on November 16, 2018.

• 

  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.  Having spent decades researching these topics, Professor Sarnoff was asked to testify to make suggestions to amend the draft bill.

  Professor Sarnoff’s 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 his 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

  Professor Koch’s Houston Law Review article, “Research Revolution or Status Quo?: The New Common Rule and Research Arising from Direct-to-Consumer Genetic Testing” examines the confluence of the 2017 revisions to the Common Rule – the regulations that govern a majority of human subjects research in the United States – and the evolving research model utilizing biospecimens and personal information collected by direct-to-consumer genetic testing companies.

  Over the last decade, direct-to-consumer (DTC) genetic testing companies like 23andMe have claimed that their customers have the opportunity to drive cutting-edge research, with the aim of “democratizing” medicine. Based on the extensive collections of genetic data and family medical history that DTC genetic testing companies have amassed, there are incredible opportunities to conduct research that would have been difficult – if not impossible – to conduct previously. In fact, 23andMe’s business model is based not on the services it provides to its customer base – the provision and interpretation of genetic testing results – but on sharing or selling the vast amounts of information and data that it collects to research institutions and pharmaceutical companies. For example, the announcement in August 2018 of 23andMe’s $300 million partnership with GlaxoSmithKline will allow the drug behemoth to develop drugs based on “deidentified” DNA and other information collected from the consumer genetics company’s five million customers.

  However, consumers of DTC genetic companies’ services might be unwilling to have their biospecimens and data used for research purposes, necessitating a deeper consideration of the present ethical, legal, and regulatory issues that arise from personal genomic research. Professor Koch’s article addresses the question of whether the revised Common Rule appropriately protects individuals who use DTC genetic testing services and whose information and biospecimens are used in future research protocols. She concludes that despite extended efforts to revise the Common Rule to address the use of biospecimens in human subjects research, there is little in the revised Rule to direct or guide DTC genetic testing companies to ensure a more robust informed consent process for the use of customers’ biospecimens and data. The lack of sufficient consent processes has ethical implications for consumers’ rights and interests, including privacy and self-determination.

  Professor Koch, who previously chaired the American Bar Association Special Committee on Bioethics and the Law, authored this article with Kelly Todd, an intern for the committee and a student at Duke University’s Institute for Science & Society. For further discussion, see Valerie Gutmann Koch and Kelly Todd, 56(1) Houston Law Review 81 (2018).

Jaharis Faculty Fellow Alumni

JHLI Affiliated Faculty

• Wendy Netter Epstein, Faculty Director of Professor of Law
• Max N. Helveston, Associate Dean for Academic Affairs and Strategic Initiatives; Associate Professor of Law
  
• Donald Hermann, Professor of Law
  
• Mark Weber, Vincent de Paul Professor of Law
  
• Steven Resnicoff, Professor of Law
  
• Joshua D. Sarnoff, Professor of Law
  
• Valerie Gutmann Koch, Jaharis Faculty Fellow
  
• Sharon Bassan, Jaharis Faculty Fellow