Stacey A. Tovino*
Imagine a forty-year-old woman who has been diagnosed with stage IV colorectal cancer and who has less than a ten percent chance of living five years from the date of her diagnosis. The woman’s physician, who specializes in oncology and practices at a hospital affiliated with a major academic medical center, recommends a combination of surgery, chemotherapy, and radiation to treat the woman’s cancer. This article addresses the permissible scope of uses and disclosures of the woman’s individually identifiable health information that may be made by the hospital and the physician for the purpose of attempting to raise funds for the hospital’s own benefit.
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*Lincy Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. Ph.D., University of Texas Medical Branch; J.D., University of Houston Law Center; B.A., Tulane University. I thank Nancy Rapoport, Interim Dean, and Daniel Hamilton, Dean, William S. Boyd School of Law, for their financial support of this research project. I also thank William J. Winslade (James Wade Rockwell Professor of Medicine, University of Texas Medical Branch) for his comments on an earlier presentation of this article, and Jeanne Price (Director, Wiener-Rogers Law Library), Chad Schatzle (Student Services Librarian, Wiener-Rogers Law Library), Jennifer Gross (Reference and Collection Management Librarian, Wiener-Rogers Law Library), Bryn Esplin (3L and President, Health Law Society, Boyd School of Law), and Danny Gobaud (3L, Boyd School of Law) for their outstanding assistance in locating many of the sources referenced in this article. I further thank the participants of the 66th Annual Meeting of the Southeastern Association of Law Schools in Palm Beach, Florida, for their helpful comments and suggestions on earlier presentations and versions of this article.
Anders Walker*
Behind police brutality there is social brutality, economic brutality, and political brutality. — Eldridge Cleaver
Few issues in American criminal justice have proven more toxic to police/community relations than stop and frisk. To take just one example, federal judge Shira Scheindlin recently declared that stops lacking “individualized reasonable suspicion” had become so “pervasive and persistent” in New York City that they not only reflected “standard [police] procedure,” but had become “a fact of daily life” for minority residents. Scheindlin promptly ordered “immediate changes to the NYPD’s policies,” meanwhile recalling the Supreme Court’s observation in Terry v. Ohio that “the degree of community resentment” caused by a particular police practice could influence judicial “assessment” of that practice.
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*Professor, Saint Louis University School of Law; Ph.D, 2003, Yale University; J.D., 1998, Duke University; B.A., 1994, Wesleyan University. I would like to thank Tracey Meares, David Sklansky, Jeffrey Fagan, Devon Carbado, Darryl K. Brown, Kami Chavis Simmons, Scott Sundby, Arnold Loewy, Eric J. Miller, and Joel Goldstein for input on this piece. I would also like to thank Adina Schwartz, Dorothy Schultz, and the members of the John Jay College of Criminal Justice faculty for early conversations on this topic, including insight into the role that riots played in the development of a Humanities curriculum for the New York City Police Department.
Mary Ziegler*
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance. This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.
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*Assistant Professor, Florida State University College of Law. J.D., 2007, Harvard Law School; B.A., 2004, Harvard College. Professor Ziegler would like to thank Beth Burkstrand-Reid, Caroline Corbin, Jaime King, Maya Manian, Rachel Rebouché, and Tracy Thomas for sharing their thoughts on earlier drafts of this piece.
Nick Dantonio
People smoke to get a buzz. Plain and simple. Every time a person decides to smoke a cigarette they make a personal costbenefit decision. The benefits of smoking often include improved concentration and mood as well as providing sedative and euphoric effects. On the other hand, the costs of smoking traditional, combustible cigarettes are quite high. The adverse effects of smoking combustible cigarettes have become common knowledge over the past fifty years, beginning with the required warnings on cigarette packs in the 1960s, as countless studies have affirmed the link between cigarette smoking and a seemingly endless list of negative health effects.
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Paul Holdsworth
Long before President John F. Kennedy famously proclaimed the United States of America a “nation of immigrants,” the Statue of Liberty stood above New York Harbor as a beacon of our nation’s historically rich immigrant background. Since 1886, Lady Liberty has triumphantly posed as a proud symbol of freedom, refuge, and opportunity. At the base of her iconic pose, Emma Lazarus’ immortal poem poignantly calls for the world’s tired and poor, and exhorts them to enter by the “golden door.” Americana symbolism aside, this exhortation has proven quite paradoxical. Immigration has provided our country with unquestionable cultural richness, yet, at times, the country’s treatment of immigrants has contradicted fundamental notions of fairness and decency.
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Victor Flatt *
Heather Payne **
Water, always necessary, is becoming less available. The Organization for Economic Cooperation and Development (“OECD”) predicts water use will increase by 55% between 2000 and 2050, and that by 2050, over 40% of the world’s population “will live in river basins under severe water stress.”[1] Climate change is making this worse. Approximately 486 million people will be exposed to water scarcity or aggravated scarcity even if the average global temperature rise is limited to 2°C.[2] If temperatures rise further, the numbers increase.[3] Looking at food production globally, a quarter of croplands lack adequate water, and 56% of irrigated land is under high to extremely high water stress.[4]
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* Thomas F. and Elizabeth Taft Distinguished Professor in Environmental Law, and Director, Center for Law, Environment, Adaptation, and Resources (CLEAR) at the University of North Carolina School of Law.
** Fellow, Center for Law, Environment, Adaptation, and Resources (CLEAR) at the University of North Carolina School of Law.
[1]. OECD, Why Does Water Security Matter?, in Water Security for Better Lives 15 (2013), available at http://www.oecd-ilibrary.org/environment/water-security_97892642 02405-en.
[2]. Dieter Gerten et al., Asynchronous Exposure to Global Warming: Freshwater Resources and Terrestrial Ecosystems, 8 Envtl. Res. Letters 034032, at 4 (2013), available at http://iopscience.iop.org/1748-9326/8/3/034032/pdf/1748-9326_8_3_034032.pdf. Another report has found that this level of temperature rise will increase the world’s population living under absolute water scarcity by an additional 40%. Jacob Schewe et al., Multimodel Assessment of Water Scarcity Under Climate Change, Proc. Nat’l Acad. Sci. 1 (early online ed. 2013), available at http://www.pnas.org/content/early/2013/12/12/1222460110. full.pdf.
[3]. Gerten et al., supra note 2, at 4.
[4]. Francis Gassert, One-Quarter of World’s Agriculture Grows in Highly Water-Stressed Areas, World Res. Inst. Blog (Oct. 31, 2013), http://www.wri.org/blog/one-quarter-world’s-agriculture-grows-highly-water-stressed-areas.
Keith B. Hall *
Hydraulic fracturing is a process that often is used to stimulate the production of oil and natural gas from low permeability formations. The process is controversial. Some people passionately support the use of hydraulic fracturing, while others fervently oppose it. Much of the controversy arises from the fact that many people fear that hydraulic fracturing might cause contamination of underground sources of drinking water. In part, the public debate and disagreement regarding hydraulic fracturing is fueled by competing opinions regarding how society should balance the tradeoffs between economic development and environmental protection. But this is only part of the disagreement.
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* Campanile Charities Professor of Energy Law and Director of the Louisiana Mineral Law Institute. J.D., 1996, Loyola University School of Law; B.S., Chemical Engineering, 1985, Louisiana State University.
Rhett B. Larson *
Achieving food security and energy security are two primary policy aims of international and domestic law. Ironically, the pursuit of energy security can often frustrate efforts to achieve food security. Energy security is the condition of a nation and its citizens having reasonable physical and economic access to sufficient and sustainable energy.[1] Food security is the condition of a nation and its citizens having reasonable physical and economic access to sufficient and sustainable food.[2] These two objectives often collide in the area of agricultural water management. It is in that realm that, frustratingly, the goal of achieving food security most frequently comes into conflict with the ambition to achieve energy security.
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* Associate Professor of Law, The University of Oklahoma College of Law. M.Sc., 2011, Oxford University; J.D., 2005, The University of Chicago Law School; B.A., 2002, Brigham Young University. This article is written as part of the 2013 Allen Chair Symposium on the Energy-Water Nexus, hosted by the University of Richmond School of Law. My thanks go to Karen Bradshaw Schulz, Emily Hammond, Troy Rule, Dan Tarlock, David Grey, Patricia Wouters, and the panelists, presenters, moderators, participants, and organizers of the 2013 Allen Chair Symposium.
[1]. Barry Barton et al., Introduction to Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment 5 (Barry Barton et al. eds., 2004); see Wen-chen Shih, Energy Security, GATT/WTO, and Regional Agreements, 49 Nat. Resources J. 433, 436 (2009) (citing U.N. Dev. Programme, U.N. Dep’t of Econ. & Soc. Aff., World Energy Council, World Energy Assessment: Overview 2004 Update, at 42, U.N. Sales No. E.04.III.B.6 (2004), available at http://www.undp.org/content/dam/ap laws/publication/en/publications/environment-energy/www-ee-library/sustainable-energy/ world-energy-assessment-overview-2004-update/World%20Energy%20Assessment%20Ov erview-2004%20Update.pdf).
[2]. See, e.g., Special Session of the Committee on Agriculture, Negotiations on WTO Agreement on Agriculture: Proposals by India in the Areas of (i) Food Security, (ii) Market Access, (iii) Domestic Support, and (iv) Export Competition, ¶ 1, G/AG/NG/W/102 (Jan. 15, 2001), available at https://docs.wto.org/dol2fe/Pages/FE_Search/DDFDocuments/48712/Q/ G/AG/NGW102.pdf.
Justin Pidot *
On March 24, 1989, the Exxon Valdez oil tanker ran aground on Bligh Reef.[1] Over the next five hours, the incapacitated vessel spilled more than ten million gallons of crude oil into Alaska’s Prince William Sound, and some of that oil remains in the environment to this day.[2]
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* Assistant Professor, University of Denver Sturm College of Law. I would like to thank Amanda Leiter, Nancy Leong, Lisa Grow Sun, and Annecoos Wiersema for their help with this article and the University of Richmond Law Review for inviting me to participate in the 2013 Allen Chair Symposium.
[1]. Stephen Raucher, Raising the Stakes for Environmental Polluters: The Exxon Valdez Criminal Prosecution, 19 Ecology L.Q. 147, 147 (1992).
[2]. Amy J. Wildermuth, The Legacy of the Exxon Valdez: How Do We Stop the Crisis?, 7 U. St. Thomas L.J. 130, 130 (2009).
Dr. Benjamin K. Sovacool *
Alex Gilbert **
Existing and planned reliance on thermoelectric power plants—facilities that burn oil, natural gas, coal, and biomass, or fission atoms—depends too heavily on assumptions of widespread, abundant water resources. As the Union of Concerned Scientists has estimated, power plants in the United States take in almost triple the average amount of water flowing over Niagara Falls each minute to meet their cooling needs.[1] Or, put another way, on a typical day more than 500 billion liters of fresh water travel through power plants in the United States—more than twice the amount flowing through the entire Nile River.[2] Yet water is a critical constraint often overlooked in electricity and energy decisions. When considered, it challenges us to think more broadly about integrated resource planning, reliability challenges, and resource selection.
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* Institute for Energy and the Environment, Vermont Law School and Center for Energy Technologies, School of Business and Social Sciences, Aarhus University. Ph.D., 2006, Virginia Polytechnic Institute & State University; M.A., 2003, Wayne State University; B.A., 2001, John Carroll University.
** Energy Analyst, Haynes and Boone, LLP, and former research fellow at Vermont Law School’s Institute for Energy and the Environment. M.A. in Energy Regulation and Law, 2013, Vermont Law School; B.A., Lake Forest College, Environmental Studies and International Relations, summa cum laude.
[1]. Kristen Averyt et al., Union of Concerned Scientists, Freshwater use by U.S. Power Plants: Electricity’s Thirst for a Precious Resource 1 (2011) [hereinafter Freshwater Use], available at http://www.synapse-energy.com/Downloads/Synapse Report.2011-11.UCS.Freshwater-Use-by-US-Power-Plants.10-028.pdf.
[2]. The Coming Clash Between Water and Energy, IEEE Spectrum (May 28, 2010, 12:25 PM), http://spectrum.ieee.org/energy/environment/the-coming-clash-between-water-and-energy.
