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J. of Law and Health     Open Access   (Followers: 8)
Cleveland State Law Review     Free   (Followers: 2, SJR: 0.116, CiteScore: 0)
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Journal of Law and Health
Number of Followers: 8  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1044-6419
Published by Cleveland State University Homepage  [2 journals]
  • Inconsistency at the Pole: Exotic Dancer's Employment Status Should
           Be Uniform Throughout the U.S.

    • Authors: T.J.D. Nadas
      Abstract: As states start to recognize exotic dancers as employees under Fair Labor Standards Act (FLSA), states that have not yet classified exotic dancers as employees have put club owners in danger of costly litigation for violating the FLSA. Thus, this Note is designed to act as a road map for club owners and state legislators to recognize exotic dancers as employees in compliance with the FLSA and provide insight into how to avoid litigation. This Note analyzes this issue in four parts; Part IV, the analysis, is split into four substantial sections. Part I gives a short summary of the history and purpose of the FLSA. It then reviews the relevant facts and holdings of three circuit court cases in which exotic dancers were classified as employees under the FLSA. Finally, it concludes with a short discussion of the test used in these cases to make that determination. Part II starts with a broader geographical analysis of the United States and summarizes the current groups of states in relation to the laws surrounding exotic dancers as employees. It then analyzes the industry impact of states that mandated dancers be recognized as employees and states that still do not have such mandate. It also discusses the potential impact on states that have not yet followed suit. Part II then analyzes the practical implications of holding exotic dancers as employees of clubs. Part III presents an anomaly in the current framework of the industry that has the potential to lead to a destructive loophole with feature entertainers. Part IV compares the labor rights of strippers to other sex workers. Part V is a brief conclusion with broad recommendations for club operators and legislators, reiterating the potential impact on the health and wellbeing of the entertainers.
      PubDate: Tue, 14 Jun 2022 10:26:27 PDT
       
  • Systematic Racism, Abortion and Bias in Medicine: All Threads Woven in the
           Cloth of Racial Disparity for Mothers and Infants

    • Authors: Gabrielle Ploplis
      Abstract: This note argues that decisions like that of NAACP v. Wilmington Medical Center, Inc. have been one of many contributing factors in the disparity in mortality rates of both black and American Indian/Alaska Native newborns in comparison to white newborns across the country. Part II examines the current state of the law regarding issues of discrimination, accessibility of health care, and relocation and closure of medical centers that has disproportionately affect minorities in the U.S. Part III discusses the statistics of white, black, and American Indian/Alaska Native newborn and maternal mortality rates in the United States. Part IV addresses the potential causes of this disparity, which include inadequate access to quality medical care for racial minorities, implicit racial bias, a demand for more minority doctors, and strict abortion restrictions. Part V proposes that a reduction in the racial disparities in mortality rates for black and indigenous mothers and infants can be achieved by implementing comprehensive state-level “public-private” collaborations, and increasing availability and coverage of more birthing resources like midwives. Lastly, Part VI concludes that the current condition of federal and state legislation has not eliminated the racial disparities in maternal and infant mortality rates, and further measures must be taken to achieve this goal.
      PubDate: Tue, 14 Jun 2022 10:26:27 PDT
       
  • Incarcerated Persons During a Public Health Emergency

    • Authors: Meredith Harrell
      Abstract: This article looks at the nation’s response to the COVID-19 pandemic since March 2020 and explores the commonalities and differences of states’ actions to protect their citizens, especially the most vulnerable populations. The article discusses the government’s obligations to jailees and prisoners during the COVID-19 pandemic and how incarcerated persons have been consistently failed by the institutions that are required to protect them. The article examines possible remedies for these governmental and institutional failings under the Eighth Amendment and § 1983 civil rights claims. Ultimately the article proposes that monetary damages would provide relief to incarcerated individuals and their families where other remedies have often failed. Additionally, monetary damages will send the message that those under the protection of the state need tangible justice and that the government needs rigorous accountability during a public health emergency.
      PubDate: Tue, 14 Jun 2022 10:26:26 PDT
       
  • How the Conviction and Sentencing of "Tiger Mandingo" Modernized
           Missouri's HIV-Related Statutes in 2021

    • Authors: Ryan Jay McElhose
      Abstract: Michael Johnson or “Tiger Mandingo” as he referred to himself on social media, engaged in sexual acts with six different men, all of whom claimed that Michael lied about living with human immunodeficiency virus (HIV). As a result, the State of Missouri charged him with recklessly infecting a partner with HIV exposing or attempting to expose another with HIV. With contradictory trial testimony, no genetic fingerprint testing, and little to no questioning of his sexual partners’ credibility, the jury found Michael Johnson guilty of five felony counts which resulted in a 30-year prison sentence. Ultimately the Missouri Court of Appeals overturned Michael Johnson’s conviction, but only on the function of a discovery violation; the court did not reach the question of whether Michael’s 30-year sentence was cruel and unusual and thus constitutionally impermissible.However, Michael’s conviction and sentencing sparked international attention towards how the United States continues to convict people living with HIV under archaic statutes that do not align with medical and scientific advancements or evolving moral standards. Today, HIV is a chronic disease, like diabetes, yet exposure to HIV is still treated as if it is a death sentence in both public opinion and American jurisprudence. These convictions and sentencing guidelines result in harsh sentences for punishments that do not match the crime, misplaces responsibility when two consenting adults choose to have sex, and raises the possibility of exposing people to wrongful convictions.While Missouri and other states have attempted to modernize these antiqued laws, the modernized laws require further analysis to determine whether they in step with the science and if people living with HIV are still vulnerable to harsh sentences and wrongful convictions. This article identifies major legal considerations of the modernized laws and provides guidance on reform.
      PubDate: Tue, 14 Jun 2022 10:26:26 PDT
       
  • Copyright Statement

    • Authors: Cleveland State Journal of Law; Health
      PubDate: Tue, 14 Jun 2022 10:26:25 PDT
       
  • "Defunding" the Criminality of Mental Illness by Funding Specialized
           Police Training: How Additional Training and Resources for Dealing with
           Mental Health will be Beneficial for All Sides

    • Authors: Margaret Ahern
      Abstract: The momentous public outcry for police reform is the result of police encounters ending fatally, which is notably sixteen times more likely for individuals suffering from mental illness in the United States. These horrific incidents highlight the systemic failings of traditional police departments training and its failure to provide officers with the necessary skills to de-escalate crisis situations involving the vastly overrepresented mentally ill population involved in the United States justice system. This article demonstrates that effective police training involving crisis intervention and de-escalation techniques equip police officers with knowledge and skills that enable them to contrive more positive outcomes for all involved. With a particular focus on Ohio, this article highlights the significant discrepancy between ideal police training and current Ohio requirements, which glaringly fail to require continual police officer training. The article ultimately proposes that the Ohio legislature pass a bill that both requires police officers to complete increased training programs in de-escalation and crisis intervention while providing departments with the necessary funding to make implementation possible. By implementing the proffered recommendations, the State of Ohio has the opportunity to contrive more positive police encounters with mentally ill individuals and the wider community.
      PubDate: Fri, 07 Jan 2022 12:58:56 PST
       
  • Contract Remedies Need Not Undercompensate Aspiring Parents When
           Cryopreserved Reproductive Material Is Lost or Destroyed: Recovery of
           Consequential Damages for Emotional Disturbance When Breach of Contract
           Results in the Lost Opportunity to Become Pregnant with One's Own
           Biological Child

    • Authors: Joseph M. Hnylka
      Abstract: The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation facilities throughout the United States. As the use of cryopreservation increases, so too does the possibility that stored reproductive material will be lost or destroyed. Recently, over 4,000 cryopreserved human embryos inadvertently were destroyed at University Hospitals Fertility Clinic in Ohio, and 3,500 eggs and embryos were destroyed when a cryopreservation tank recently malfunctioned at a fertility clinic in California. When reproductive material is lost or destroyed, the aspiring parents’ primary harm is emotional; it is non-pecuniary in nature. The emotional harm is particularly extreme in cases where the loss destroys a couple’s only hope of becoming parents. Despite the severity of the emotional harm suffered due to the loss, aspiring parents often are left without a clear legal basis to recover emotional disturbance damages.Although emotional disturbance damages are rarely awarded for breach of contract, the article explains why such awards are justified based on the current trend in contract law, as exemplified by Restatement (Second) of Contracts section 353 and posits that clinics and ART professionals are aware at the time of contracting that emotional disturbance is particularly likely in the event of a breach. Scholars have noted that tort damages for emotional harm often are unavailable when reproductive material is lost or destroyed, because the emotional harm is not parasitic to a physical injury, nor can aspiring parents overcome the traditional barriers to NIED recovery because they neither were in the “zone of danger” nor were they bystanders at the time of loss. Therefore, for aspiring parents who reside in traditional barrier jurisdictions, breach of contract damages may represent their only hope to recover for emotional harm. This article posits that ART clinics and professionals have actual or constructive knowledge of plaintiffs’ particular reason for storing reproductive material – namely, to achieve a later pregnancy – at the time of contracting, so as to support consequential damages for emotional disturbance. This knowledge of the contract’s purpose, coupled with the nature of the transaction and the surrounding circumstances, put ART clinics and professionals on notice at the time of contracting that emotional disturbance is particularly likely to result from a breach. The article also posits that typical broad, sweeping exculpatory clauses contained in cryopreservation agreements that attempt to negate all liability for freezing and storage of reproductive material, including negligence liability, should not be enforced because such clauses render the agreement illusory and contravene public policy.
      PubDate: Fri, 07 Jan 2022 12:58:55 PST
       
  • A Trip Through Employment Law: Protecting Therapeutic Psilocybin Users in
           the Workplace

    • Authors: Benjamin Sheppard
      Abstract: In 2020, Oregon voters legalized therapeutic psilocybin in response to a plethora of scientific studies showing symptom reduction for depression, anxiety, substance use disorders, opioid addictions, migraines, other mental illnesses, HIV/AIDS, and cancer. The legal rethinking regarding therapeutic psilocybin continues in both state legislatures and city councils. Yet, despite state and local legalization or decriminalization of therapeutic psilocybin it remains illegal under the federal Controlled Substances Act. This tension between local and federal law places therapeutic psilocybin users and their employers in a difficult position. Because all types of psilocybin use remain illegal under federal law, a zero-tolerance drug use workplace policy would discipline a state sanctioned psilocybin user for off-site or off-hours therapeutic psilocybin use. Therefore, this article proposes that as states and cities legalize therapeutic psilocybin, jurisdictions should adopt employment protections for therapeutic psilocybin users like states have adopted for medical cannabis users. The proposed statute in this article protects therapeutic psilocybin users from adverse action based solely on off-site and off-hours drug use and balances employers’ rights.
      PubDate: Fri, 07 Jan 2022 12:58:55 PST
       
  • On the Constitutionality of Hard State Border Closures in Response to the
           COVID-19 Pandemic

    • Authors: Benjamen Franklen Gussen
      Abstract: I investigate the constitutionality of hard state border closures in the United States as a prophylactic response to a pandemic. This type of border closure prevents people from entering a State, except for exempt travelers, a category that includes, for example, military, judicial and government officers, and people granted entry on compassionate grounds. Those allowed to enter usually have to then go through a quarantine regime before being released into the community. During the COVID-19 pandemic, no State has attempted such closures. However, epidemiological experts suggest that, in comparison to other border and non-border measures, such closures are more effective. Given the World Health Organization prediction of more pandemics in the foreseeable future, it is imperative that the constitutionality of such hard closures is investigated. I use structural analysis to argue that a recent challenge to hard border closures in Australia suggests that, under a strict scrutiny review, the Supreme Court is likely to uphold such closures in the United States. While actual implementation requires investigating issues that go beyond a constitutional analysis, these findings highlight the need for a wider conversation around a federal goldilocks zone when responding to the next pandemic.
      PubDate: Fri, 07 Jan 2022 12:58:54 PST
       
  • Copyright Statement

    • Authors: Cleveland State Journal of Law; Health
      PubDate: Fri, 07 Jan 2022 12:58:53 PST
       
  • Unexpected Inequality: Disparate-Impact From Artificial Intelligence in
           Healthcare Decisions

    • Authors: Sahar Takshi
      Abstract: Systemic discrimination in healthcare plagues marginalized groups. Physicians incorrectly view people of color as having high pain tolerance, leading to undertreatment. Women with disabilities are often undiagnosed because their symptoms are dismissed. Low-income patients have less access to appropriate treatment. These patterns, and others, reflect long-standing disparities that have become engrained in U.S. health systems.As the healthcare industry adopts artificial intelligence and algorithminformed (AI) tools, it is vital that regulators address healthcare discrimination. AI tools are increasingly used to make both clinical and administrative decisions by hospitals, physicians, and insurers—yet there is no framework that specifically places nondiscrimination obligations on AI users. The Food & Drug Administration has limited authority to regulate AI and has not sought to incorporate anti-discrimination principles in its guidance. Section 1557 of the Affordable Care Act has not been used to enforce nondiscrimination in healthcare AI and is under-utilized by the Office of Civil Rights. State level protections by medical licensing boards or malpractice liability are similarly untested and have not yet extended nondiscrimination obligations to AI.This Article discusses the role of each legal obligation on healthcare AI and the ways in which each system can improve to address discrimination. It highlights the ways in which industries can self-regulate to set nondiscrimination standards and concludes by recommending standards and creating a super-regulator to address disparate impact by AI. As the world moves towards automation, it is imperative that ongoing concerns about systemic discrimination are removed to prevent further marginalization in healthcare.
      PubDate: Thu, 29 Apr 2021 09:41:16 PDT
       
  • Gravely Disabled: The Vestigial Prong of 5150 Designations

    • Authors: Diane Y. Byun
      Abstract: Effective July 1, 1972, California’s Lanterman-Petris-Short Act (“LPS Act”) set the precedent for modern mental health commitment procedures in the U.S. named after its authors, State Assemblyman Frank Lanterman and State Senators Nicholas C. Petris and Alan Short, the LPS Act sought to “end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorder”; to “provide prompt evaluation and treatment of persons with mental health disorders or impaired by chronic alcoholism”; and to “guarantee and protect public safety.” Despite citing to these articles of intent, the LPS Act violates its own legislative intent through its inclusion of “gravely disabled” in its enforcement of involuntary psychiatric hold designations (also known as “5150 designations”). First, police officers are not required to make a medical diagnosis of a mental health disorder at the time of a 5150 designation; the broad scope of “gravely disabled” increases the number of persons police officers can involuntarily transport, increasing the likelihood of inappropriate and involuntary commitment of persons with mental health disorders. Second, the broad scope of “gravely disabled” produces an onslaught of 5150-designated persons (whether improperly designated or not) being sent to LPS-designated hospitals with limited resources (e.g., lack of beds and psychiatric staff); this results in patients waiting for an inordinate amount of time for a psychiatric evaluation and/or a hospital bed. Third, it is unclear whether the LPS Act sought to provide protection for the mentally ill or to provide protection from the mentally ill in its guarantee of protecting “public safety”; the inclusion of “gravely disabled” in 5150 designations indicates that the LPS Act provided the public with a duplicitous means of removing the mentally ill, impoverished, and houseless from the streets under the guise of “public safety.” This Paper suggests the following to help remedy the effects of implementing the broadly defined “gravely disabled” in 5150 designations: (1) Remove “gravely disabled” from the 5150 criteria; (2) integrate the community with mental health advocacy efforts by creating outreach and education programs; and (3) implement a client-centric approach to interacting with persons with mental health disorders through restorative policing and the establishment of a restorative court.
      PubDate: Thu, 29 Apr 2021 09:41:15 PDT
       
 
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