Texas A&M Law Review最新文献

{"title":"Response to: A Telehealth Explosion: Using Lessons From the Pandemic To Shape the Future of Telehealth Regulation","authors":"Joanna Sax","doi":"10.37419/lr.v9.arg.3","DOIUrl":"https://doi.org/10.37419/lr.v9.arg.3","url":null,"abstract":"In A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation, published in the Texas A&M Law Review, Professor Deborah Farringer tackles the critical issue of the efficacy and implementation of telehealth, using our experience(s) of telehealth during the COVID–19 pandemic as the guide. This is important, as Professor Farringer acknowledges, because while telehealth advocates pre-date the pandemic, barriers prevented the implementation of telehealth in a widespread manner. These barriers included a concern about fraud and a question as to whether telehealth visits could provide effective outcomes compared to in-person visits. Professor Farringer reflects on these barriers and addresses their validity, especially given what we learned through the COVID–19 pandemic. Professor Farringer then moves the discussion forward to propose that not only can our healthcare system utilize telehealth, but it can do so in a more meaningful way. This can be done by addressing the benefits and risks we learned through the waivers that allowed telehealth visits during the COVID–19 pandemic.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130599006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evolution or Revolution in Telehealth Regulation","authors":"George Horvath","doi":"10.37419/lr.v9.arg.2","DOIUrl":"https://doi.org/10.37419/lr.v9.arg.2","url":null,"abstract":"A frequently repeated adage, attributed to a wide range of authors and orators, holds that a serious crisis should never be allowed to go to waste. The moment in which we find ourselves renders this adage particularly timely. Responses to one of the defining crises of our age—the COVID–19 pandemic—have mostly been reactive. This includes the responses of multiple actors involved with telehealth. Congress, federal regulators, state legislatures, state regulators, private insurers, and health care providers, confronting the challenges of the pandemic, have responded by making ad hoc adjustments to the regulation and use of telehealth. Moving the conversation beyond this reactive posture, Professor Deborah Farringer’s article, A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation, surveys the history of telehealth regulation, the pandemic-era adjustments, and recent proposals for the future finds an opportunity instead. The article seeks to put a crisis to good use—taking “advantage of the momentum that the COVID–19 public health emergency has created”—to inform the creation of “a comprehensive and integrative approach” to telehealth regulation.\u0000\u0000I find it possible to read A Telehealth Explosion in two ways: as an article with narrow aims and as an article with much broader aims. Parts I and II present these two readings. In Part III, I situate the broader reading within the context of earlier expansions of federal regulation of the health care enterprise to pose the question of how likely it is that the current crisis can be put to the good use that Professor Farringer seeks.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121580725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward a More Strategic National Shortage","authors":"Troy A. Rule","doi":"10.37419/lr.v9.i1.2","DOIUrl":"https://doi.org/10.37419/lr.v9.i1.2","url":null,"abstract":"The COVID–19 pandemic exposed major deficiencies in the United States’ approach to stockpiling for emergencies. States, cities, and hospitals across the country had meager inventories of critical medical items on hand when the pandemic first reached U.S. soil, and the federal government’s Strategic National Stockpile proved far too small to serve the country’s needs in the first several months of the crisis. As nationwide shortages spread, many state governments were compelled to bid against each other to procure scarce medical supplies—a distribution approach that disadvantaged low-income and minority communities and left countless healthcare professionals and staff ill-equipped to protect themselves against a deadly virus. These severe supply shortages, which hindered the country’s early pandemic response, have since generated an unprecedented push to reform the nation’s stockpiling policy structure. This Article uses a simple cost-benefit model to highlight shortcomings in the existing U.S. stockpiling policy regime and to identify specific avenues for addressing them. Among other things, U.S. stockpiling policies need to better account for important differences in the rotatability of supplies and should incentivize more private stockpiling of the most rotatable emergency items. Targeted reforms of commandeering laws and price-gouging restrictions could further strengthen private incentives to stockpile and may even help to clarify how states and the federal government share responsibilities in the nation’s stockpiling effort. And much more federal support is needed to incentivize the build-out and maintenance of domestic supply chains for the least-rotatable emergency goods. Such tailoring of policies and programs to better fit the unique attributes of stockpiling activities can help ensure the nation is far better equipped to respond the next time disaster strikes.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130483769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Reasonable Possibility of Refoulement: The Inadequacies of Procedures to Protect Vulnerable Noncitizens from Return to Persecution, Torture, or Death","authors":"L. Ford","doi":"10.37419/lr.v9.i1.5","DOIUrl":"https://doi.org/10.37419/lr.v9.i1.5","url":null,"abstract":"Due primarily to increases in individuals fleeing violence and turmoil in Central America, over 40% of noncitizens arriving in the United States are put on a fast-track removal process and subsequently claim fear of returning to their home countries. A decade ago, the number was only 5%. This influx of asylum-seekers at the border has led to tension between those who wish to protect them and those who view such migrants as “invaders.” In 2019 and 2020, the Trump Administration proffered sweeping regulatory changes with the aim to substantively and procedurally restrict noncitizens’ access to protection from persecution and torture in their home countries. Although not all of these proposals may ultimately go into effect, it is vital to explore the legality of such provisions lest they reappear in subsequent administrations.\u0000\u0000Pursuant to domestic and international law, the United States is subject to the non-refoulement obligation, which prohibits forcibly returning a refugee to a country that threatens their life or freedom. All humans have the fundamental right to not be returned to a country where they will be persecuted or tortured, regardless of their legal status in the country where they seek protection. In the United States, noncitizens facing qualifying persecution or torture upon return to their home countries are entitled to protection in the form of statutory withholding of removal (“withholding”) or withholding or deferral of removal pursuant to the Convention Against Torture (“CAT protection”).\u0000\u0000This Comment argues that noncitizens vindicating their non-refoulement rights by seeking withholding or CAT protection must receive stronger procedural protections because of the fundamental interests at stake. Specifically, two issues are addressed. First, the use of the “reasonable possibility” standard of proof at the fear screening stage, a practice expanded in recent years, is inappropriate and a violation of the non-refoulement obligation. This standard is suited for final determinations on the merits, not threshold screenings. Because of the well-documented problems with fear screenings, even absent an increased standard of proof, this practice would result in an impermissible risk that individuals with valid claims would be returned to face persecution, torture, or even death without ever being fairly heard. Second, the unique position of these noncitizens, from legal and humanitarian perspectives, should entitle them to Constitutional Due Process Clause protections. Because their right to non-refoulement is not subject to the discretion of the Executive, the denial of due process cannot be justified by the “entry fiction,” the legal doctrine that gives certain noncitizens inside the United States limited constitutional protections because the law considers them to be detained at the border.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"357 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116682073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Amending Insurrection: Restoring the Balance of Power in The Insurrection Act","authors":"J. S. Campbell","doi":"10.37419/lr.v9.i1.6","DOIUrl":"https://doi.org/10.37419/lr.v9.i1.6","url":null,"abstract":"The Insurrection Act allows the president to domestically deploy and utilize the federal standing army and state militias to perform functions normally performed by domestic law enforcement. The president can invoke the Act when circumstances make it impracticable to enforce domestic law by normal means, when the execution of the law is obstructed such that it deprives citizens of rightful legal protections, or upon the request of a state. Under the current version of the Act, the president possesses the sole and absolute discretion to determine when it is invoked during the two former instances above. When invoked, the Act provides broad and largely undefined authority for the president to act. This Comment reviews the history behind the passage of the Insurrection Act and follows the subsequent amendments to the contemporary version. It argues that Congress and the Supreme Court have failed to provide adequate checks on the president’s domestic military power, to determine the source of this power, and to accurately describe the limits of the president’s power under the Act. By failing to adhere to the conception of military involvement in domestic law enforcement that the Founders envisioned, the nation is left vulnerable to serious abuses of power for the sake of expediency. This Comment shows that restoring checks on the president’s power under the Insurrection Act will eliminate the possibility of presidential abuse without reducing the usefulness of the Act.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127777198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Agriculture & Data Privacy: I Want A Hipaa(Potamus) For Christmas . . . Maybe","authors":"Jennifer Zwagerman","doi":"10.37419/lr.v8.i4.3","DOIUrl":"https://doi.org/10.37419/lr.v8.i4.3","url":null,"abstract":"Technology advancements make life, work, and play easier and more enjoyable in many ways. Technology issues are also the cause of many headaches and dreams of living out the copier destruction scene from the movie “Office Space.” Whether it be user error or technological error, one key technology issue on many minds right now is how all the data produced every second of every day, in hundreds of different ways, is used by those that collect it.\u0000How much data are we talking about here? In 2018, the tech company Domo estimated that by 2020 “1.7 MB of data will be created every second” for every single person on Earth. In 2019, Domo’s annual report noted that “Americans use 4,416,720 GB of internet data including 188,000,000 emails, 18,100,000 texts and 4,497,420 Google searches every single minute.” And this was before the pandemic of 2020, which saw reliance on remote technology and the internet skyrocket. It is not just social media and working from home that generates data—the “Internet of Things” (“IoT”) is expanding exponentially. From our homes (smart appliances and thermostats), to entertainment (smart speakers and tablets), to what we wear (smartwatches and fitness devices), we are producing data constantly. Over 30 billion devices currently make up the IoT, and that number will double by 2025. The IoT is roughly defined as “devices—from simple sensors to smartphones and wearables—connected together.” That connection allows the devices to “talk” to each other across networks that stretch across the world, sharing information that in turn can be analyzed (alone or combined with data from other users) in ways that may be beneficial to the user or the broader economy.\u0000The key word in that last sentence is “may.” When it comes to the data that individuals and businesses across the world produce every second of every day, some of it—perhaps most of it—could be used in ways that are not beneficial to the user or the entire economy. Some data types can be used to cause harm in obvious ways, such as personal identifying information in cases of identity theft. While some data types may seem innocuous or harmful when viewed on their own, when combined with other data from the same user or even other users, it can be used in a wide variety of ways. While I find it beneficial to know how many steps I take in a day or how much time I sleep at night, I am not the only individual or entity with access to that information. The company that owns the device I wear also takes that information and uses it in ways that are beyond my control. Why would a company do that? In many instances, “[t]he data generated by the Internet of Things provides businesses with a wealth of information that—when properly collected, stored, and processed—gives businesses a depth of insight into user behavior never before seen.”\u0000Data security and privacy in general are issues that all companies manage as they work to protect the data we provide. Some types of data receive heightene","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115566020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Texas A&M Law Review Fall 2020 Symposium: Containing Covid Catastrophes: Addressing The Effects Of Covid-19 On The Agricultural Industry Texas A&M University School Of Law","authors":"James Bradbury, Greg Ibach","doi":"10.37419/lr.v8.i4.1","DOIUrl":"https://doi.org/10.37419/lr.v8.i4.1","url":null,"abstract":"Transcript from Fall 2020 Symposium, \"Containing Covid Catastrophes: Addressing The Effects Of Covid-19 On The Agricultural Industry Texas A&M University School Of Law\"\u0000\u0000Featuring Panelists: Jim Bradbury & Greg Ibach","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122900521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Children Are Human","authors":"Kimberly Pearson","doi":"10.37419/LR.V8.I3.2","DOIUrl":"https://doi.org/10.37419/LR.V8.I3.2","url":null,"abstract":"There are great benefits to be had should the United States, one of the global leaders in economic strength and political power, ratify the United Nations Convention on the Rights of the Child (“CRC”). The mystery of the United States’s ultimate reluctance to ratify the CRC, despite the nation’s central role in the drafting process, has been interrogated for years. Scholars and policy- makers have developed compelling narratives regarding obstacles to the United States’s ratification and implementation of the CRC. However well- reasoned the arguments for ratification are, there has been little progress in persuading the United States to ratify the CRC.\u0000\u0000While the work toward ratification should continue on every level, informal implementation before ratification would be advantageous and in line with historical methods of reform in the United States. One area that has been over- looked to the advantage of minority and vulnerable populations is domestic relations courts in the United States. In the United States, children’s rights advocacy work should be conducted like cause advocacy for historically disfavored groups to achieve legal recognition and protection of their rights. For example, parenting equality efforts were primarily focused on creating change in individual courts over time, allowing advocates to teach judicial officers and other legal decision-makers about positive outcomes for children of lesbian and gay parents while dispelling myths, misperceptions, and negative stereotypes about sexual minorities. Similarly, other disfavored parents, like working mothers, religious, and racial minorities, have used individual court cases to advocate and educate until new, progressive norms are adopted as national standards. Advocates for children’s rights should adopt institutional change theory and tailor cause advocacy efforts to implement the CRC principles in local domestic relations courts. Focusing on change from within institutions may shift legal norms more quickly, so children are recognized as fully human and thus rights holders in the United States, rather than relying on external legislative changes.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116433050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Growing Monopoly in the Corn Seed Industry","authors":"Bethany K Sumpter","doi":"10.37419/LR.V8.I3.6","DOIUrl":"https://doi.org/10.37419/LR.V8.I3.6","url":null,"abstract":"How a company conducts business is often a consumer concern. Individuals have accused company after company of monopolistic behavior. These individuals have also criticized the Department of Justice for not stopping a monopoly from forming in a specific industry. An example is the corn seed industry, where stakeholders have accused companies of monopolistic behavior. Recent mergers and acquisitions in the corn seed industry have left fewer companies in control, and because of this consolidation, individuals are urging the government to act. This Comment argues that, while the corn seed industry is on the road to containing a monopoly, the industry does not yet contain enough characteristics to warrant a government response. However, when a monopoly does form, the government should, and likely will, act.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"462 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127533880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Attempting—and Failing—to Balance Fairness and Efficiency in the Arbitral System","authors":"Hannah N Myslik","doi":"10.37419/LR.V8.I3.4","DOIUrl":"https://doi.org/10.37419/LR.V8.I3.4","url":null,"abstract":"The Supreme Court has actively expanded the Federal Arbitration Act into realms not originally contemplated by Congress. This harms consumers who are parties to pre-dispute, binding arbitration agreements. If consumers sign a contract containing an arbitration agreement, they may be required to arbitrate everything within the agreement’s scope, including their statutory rights. Simultaneously, the Court has restricted class action arbitration—a device on which consumers have relied when they are forced to arbitrate.\u0000\u0000The Court’s expansion of arbitration and restriction of class action arbitration has led many to distrust and advocate for changing the arbitral system. Arbitration institutions have directly reacted to the concerns about arbitration by promulgating more rules, procedures, and safeguards to make arbitration fairer for consumers. However, adding rules and procedures is probably not enough to make arbitration proceedings truly fair, and doing so creates a system that is so court-like that arbitration loses its chief benefits—affordability and efficiency. Thus, if the Court continues with its expansive arbitration jurisprudence and its anti-class action arbitration jurisprudence, institutional reaction is an unlikely solution to address arbitration’s fairness concerns.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134647446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}