Duke Law Journal最新文献

{"title":"The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation","authors":"John Hall","doi":"10.2139/ssrn.3550906","DOIUrl":"https://doi.org/10.2139/ssrn.3550906","url":null,"abstract":"In Gundy v. United States, for the first time since 1935, four justices expressed a willingness to revisit the nondelegation doctrine that has been left undisturbed for over eighty years. Justice Neil Gorsuch proposed a new test for approaching nondelegation challenges. He averred that a legislature can only give power under three circumstances: (1) to “fill up the details”; (2) to make the application of a rule dependent on certain executive fact-finding; or (3) to assign non-legislative responsibilities to either the judicial or executive branch. The three prongs of his analysis form the new Gorsuch test. \u0000 \u0000Given the split on the issue, the importance of understanding Justice Gorsuch’s Gundy dissent becomes paramount. This student Note is one of the first academic pieces to situate the Gorsuch test within the nondelegation doctrine. It argues that the test is stricter than any prior version and would severely curtail the ability of Congress to give agencies power, thus limiting the administrative state. \u0000 \u0000Part I introduces the disputed statute in Gundy, the factual circumstances underlying the case, the debates in the briefs and at oral argument, and the three fractured opinions. The case history reveals the neither the Court nor the parties significantly considered a new test for the nondelegation doctrine. Justice Gorsuch’s dissenting opinion, outlined in Part I, has three salient features: a statutory reading, an originalism discussion, and his proposal. Part II considers the original understanding and history of the nondelegation doctrine, criticizing Justice Gorsuch for omitting pertinent evidence from the text, constitutional convention, early legislation, contemporary state interpretations, and the first Supreme Court nondelegation opinions. Then, it explores the case law and past proposals for a narrower nondelegation test than the “intelligible principle,” emphasizing that no court has ever rigorously enforced the nondelegation principle, even as the administrative state grew exponentially. Part III considers the weaknesses and potential impact of the Gorsuch test. It analyzes Justice Gorsuch’s previous opinion on the question, past Supreme Court nondelegation tests, the effects on other broad statutes, the need for doctrinal clarity, and a potential application of his proposal. Ultimately, this Note concludes that the problems of clarity and application caution against its adoption.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"70 1","pages":"175-215"},"PeriodicalIF":1.9,"publicationDate":"2020-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49025735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stem cell injections for axial back pain: a systematic review of associated risks and complications with a case illustration of diffuse hyperplastic gliosis resulting in cauda equina syndrome.","authors":"Salah G Aoun, Valery Peinado Reyes, Tarek Y El Ahmadieh, Matthew Davies, Ankur R Patel, Vin Shen Ban, Aaron Plitt, Najib E El Tecle, Jessica R Moreno, Jack Raisanen, Carlos A Bagley","doi":"10.3171/2019.6.SPINE19594","DOIUrl":"10.3171/2019.6.SPINE19594","url":null,"abstract":"<p><strong>Objective: </strong>Axial low-back pain is a disease of epidemic proportions that exerts a heavy global toll on the active workforce and results in more than half a trillion dollars in annual costs. Stem cell injections are being increasingly advertised as a restorative solution for various degenerative diseases and are becoming more affordable and attainable by the public. There have been multiple reports in the media of these injections being easily available abroad outside of clinical trials, but scientific evidence supporting them remains scarce. The authors present a case of a serious complication after a stem cell injection for back pain and provide a systematic review of the literature of the efficacy of this treatment as well as the associated risks and complications.</p><p><strong>Methods: </strong>A systematic review of the literature was performed using the PubMed, Google Scholar, and Scopus online electronic databases to identify articles reporting stem cell injections for axial back pain in accordance with the PRISMA guidelines. The primary focus was on outcomes and complications. A case of glial hyperplasia of the roots of the cauda equina directly related to stem cell injections performed abroad is also reported.</p><p><strong>Results: </strong>The authors identified 14 publications (including a total of 147 patients) that met the search criteria. Three of the articles presented data for the same patient population with different durations of follow-up and were thus analyzed as a single study, reducing the total number of studies to 12. In these 12 studies, follow-up periods ranged from 6 months to 6 years, with 50% having a follow-up period of 1 year or less. Most studies reported favorable outcomes, although 36% used subjective measures. There was a tendency for pain relief to wane after 6 months to 2 years, with patients seeking a surgical solution. Only 1 study was a randomized controlled trial (RCT).</p><p><strong>Conclusions: </strong>There are still insufficient data to support stem cell injections for back pain. Additional RCTs with long-term follow-up are necessary before statements can be made regarding the efficacy and safety.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"45 1","pages":"906-913"},"PeriodicalIF":2.9,"publicationDate":"2019-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90551472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Radiological and clinical predictors of scoliosis in patients with Chiari malformation type I and spinal cord syrinx from the Park-Reeves Syringomyelia Research Consortium.","authors":"Jennifer M Strahle, Rukayat Taiwo, Christine Averill, James Torner, Chevis N Shannon, Christopher M Bonfield, Gerald F Tuite, Tammy Bethel-Anderson, Jerrel Rutlin, Douglas L Brockmeyer, John C Wellons, Jeffrey R Leonard, Francesco T Mangano, James M Johnston, Manish N Shah, Bermans J Iskandar, Elizabeth C Tyler-Kabara, David J Daniels, Eric M Jackson, Gerald A Grant, Daniel E Couture, P David Adelson, Tord D Alden, Philipp R Aldana, Richard C E Anderson, Nathan R Selden, Lissa C Baird, Karin Bierbrauer, Joshua J Chern, William E Whitehead, Richard G Ellenbogen, Herbert E Fuchs, Daniel J Guillaume, Todd C Hankinson, Mark R Iantosca, W Jerry Oakes, Robert F Keating, Nickalus R Khan, Michael S Muhlbauer, J Gordon McComb, Arnold H Menezes, John Ragheb, Jodi L Smith, Cormac O Maher, Stephanie Greene, Michael Kelly, Brent R O'Neill, Mark D Krieger, Mandeep Tamber, Susan R Durham, Greg Olavarria, Scellig S D Stone, Bruce A Kaufman, Gregory G Heuer, David F Bauer, Gregory Albert, Jeffrey P Greenfield, Scott D Wait, Mark D Van Poppel, Ramin Eskandari, Timothy Mapstone, Joshua S Shimony, Ralph G Dacey, Matthew D Smyth, Tae Sung Park, David D Limbrick","doi":"10.3171/2019.5.PEDS18527","DOIUrl":"10.3171/2019.5.PEDS18527","url":null,"abstract":"<p><strong>Objective: </strong>Scoliosis is frequently a presenting sign of Chiari malformation type I (CM-I) with syrinx. The authors' goal was to define scoliosis in this population and describe how radiological characteristics of CM-I and syrinx relate to the presence and severity of scoliosis.</p><p><strong>Methods: </strong>A large multicenter retrospective and prospective registry of pediatric patients with CM-I (tonsils ≥ 5 mm below the foramen magnum) and syrinx (≥ 3 mm in axial width) was reviewed for clinical and radiological characteristics of CM-I, syrinx, and scoliosis (coronal curve ≥ 10°).</p><p><strong>Results: </strong>Based on available imaging of patients with CM-I and syrinx, 260 of 825 patients (31%) had a clear diagnosis of scoliosis based on radiographs or coronal MRI. Forty-nine patients (5.9%) did not have scoliosis, and in 516 (63%) patients, a clear determination of the presence or absence of scoliosis could not be made. Comparison of patients with and those without a definite scoliosis diagnosis indicated that scoliosis was associated with wider syrinxes (8.7 vs 6.3 mm, OR 1.25, p < 0.001), longer syrinxes (10.3 vs 6.2 levels, OR 1.18, p < 0.001), syrinxes with their rostral extent located in the cervical spine (94% vs 80%, OR 3.91, p = 0.001), and holocord syrinxes (50% vs 16%, OR 5.61, p < 0.001). Multivariable regression analysis revealed syrinx length and the presence of holocord syrinx to be independent predictors of scoliosis in this patient cohort. Scoliosis was not associated with sex, age at CM-I diagnosis, tonsil position, pB-C2 distance (measured perpendicular distance from the ventral dura to a line drawn from the basion to the posterior-inferior aspect of C2), clivoaxial angle, or frontal-occipital horn ratio. Average curve magnitude was 29.9°, and 37.7% of patients had a left thoracic curve. Older age at CM-I or syrinx diagnosis (p < 0.0001) was associated with greater curve magnitude whereas there was no association between syrinx dimensions and curve magnitude.</p><p><strong>Conclusions: </strong>Syrinx characteristics, but not tonsil position, were related to the presence of scoliosis in patients with CM-I, and there was an independent association of syrinx length and holocord syrinx with scoliosis. Further study is needed to evaluate the nature of the relationship between syrinx and scoliosis in patients with CM-I.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"38 1","pages":"520-527"},"PeriodicalIF":2.1,"publicationDate":"2019-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90547181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strange Bedfellows: Native American Tribes, Big Pharma, and the Legitimacy of Their Alliance.","authors":"Daniel C Kennedy","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Lost in the cacophony surrounding the debate about high drug prices is the fundamental principle that pharmaceutical innovation will not occur without the prospect of outsized returns enabled through market exclusivity. Biopharmaceutical patents are currently under siege, subject to challenge both in inter partes review (\"IPR\") proceedings and in Hatch-Waxman actions. These twin assaults threaten to eliminate the incentives necessary for biotechnological innovation--particularly for discoveries made upstream in the innovation pipeline--thus imperiling the development of new drug therapies. But a fascinating solution has emerged: invoking tribal immunity to shield pharmaceutical patents from IPR before the Patent Trial and Appeal Board (\"PTAB\"). This serves two critically important objectives: promoting tribal self-sufficiency, and encouraging investment in life-saving and life-improving new drugs. Contractual partnerships between Native American tribes and pharmaceutical companies not only provide the tribes with a steady stream of royalty revenue, but also insulate biopharmaceutical patents from challenge in IPR proceedings through the invocation of long-established principles of tribal sovereign immunity. This Note is the first piece of scholarship to comprehensively analyze, and advocate for, the right to invoke tribal sovereign immunity in IPR proceedings.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"68 7","pages":"1433-68"},"PeriodicalIF":1.9,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37163700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prescription Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter","authors":"J. Oliva","doi":"10.2139/SSRN.3225000","DOIUrl":"https://doi.org/10.2139/SSRN.3225000","url":null,"abstract":"This article operates at the intersection of privacy law, Fourth Amendment doctrine, and public health realities triggered by the United States drug overdose epidemic. Reputable reporting sources, public health scholars, and pundits frequently frame the ongoing American overdose crisis as a prescription drug overdose problem attributable to the overprescribing of opioid analgesics. The problem with this narrative is that it runs counter to the current epidemiological data, which indicate that the majority of American overdose deaths are now a result of illicit drug use and not prescription drug abuse. The prescription-centric frame has nonetheless sparked the rapid rise of law enforcement and regulatory surveillance of prescribers and patients in the form of state prescription drug monitoring program (PDMP) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed prescription, collect a stunning amount of patient protected health information (PHI). To put things in context, Americans filled 4,063,166,658 prescriptions at retail pharmacies in 2017 alone. PDMPs are largely criminal and regulatory law enforcement tools dressed up in public health promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor shopper crack downs, the Drug Enforcement Administration (DEA) has made it a routine practice to self-issue administrative subpoenas to conduct warrantless, dragnet-style sweeps of the swarms of sensitive protected health data stored in state PDMP databases. This widespread law enforcement prescribing surveillance tactic, which reveals highly personal health information, including, among other things, patients’ contraceptive histories, gender transition decisions, and HIV diagnoses, raises serious constitutional privacy concerns. The Supreme Court’s recent Fourth Amendment decision, Carpenter v. United States, however, may limit law enforcement’s ability to continue to access droves of electronically-stored patient prescribing-related PHI in the custody of a state regulatory agency without a court order supported by probable cause. The Court’s decision in Carpenter already has been heralded as “a landmark privacy case,” which this article uniquely applies to prescription drug monitoring and law enforcement surveillance tactics provoked by the U.S. overdose crisis and its dominant narrative. Carpenter and the Fourth Amendment doctrines central to its holding motivate this article and animate its two core contentions. First, this article maintains that pertinent pre-Carpenter precedent requires the DEA to obtain a Fourth Amendment warrant in order to conduct sweeps of state PDMP databases searching patient protected health information. It then posits that courts are even more likely to rule that warrantless DEA searches of sensitive and frequently revealing health care data run afoul of the Fourth Amendment in the post-Carpenter world. Simply stated, PDMP protected health information is entitle","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"69 1","pages":"775-853"},"PeriodicalIF":1.9,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43360156","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Promising Viral Threat to Bacterial Resistance: the Uncertain Patentability of Phage Therapeutics and the Necessity of Alternative Incentives.","authors":"Kelly Todd","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Bacteriophages, or \"phages,\" are a category of highly adept and adaptable viruses that can infect and kill bacteria. With concerns over the burgeoning antibiotic-resistance crisis looming in recent years, scientists and policymakers have expressed a growing interest in developing novel treatments for bacterial infections that utilize bacteriophages. Because of the great expense associated with bringing a new drug to market, patents are usually considered the gold standard for incentivizing research and development in the pharmaceutical field. Absent such strong protection for a developer’s front end investment, pharmaceutical development remains financially risky and unattractive. Unfortunately, recent Supreme Court jurisprudence analyzing patentable subject matter under 35 U.S.C. subsection 101 has cast doubt on whether phage therapeutics would be eligible for strong patent protection. In order for the promise of phage therapeutics to become a reality, alternative protections or incentives are likely necessary. Such a framework would likely include trade secrecy, regulatory exclusivities, research support, alternative payment models, or some combination thereof.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"68 4","pages":"767-805"},"PeriodicalIF":1.9,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36869531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deviancy, Dependency, and Disability: the Forgotten History of Eugenics and Mass Incarceration.","authors":"Laura I Appleman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Three widely discussed explanations of the punitive carceral state are racism, harsh drug laws, and prosecutorial overreach. These three narratives, however, only partially explain how our correctional system expanded to its current overcrowded state. Neglected in our discussion of mass incarceration is our largely forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, is an important part of our history of imprisonment, one that has shaped key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"68 3","pages":"417-78"},"PeriodicalIF":1.9,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36789419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sludge and Ordeals","authors":"C. Sunstein","doi":"10.2139/SSRN.3288192","DOIUrl":"https://doi.org/10.2139/SSRN.3288192","url":null,"abstract":"In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services; the problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. In principle, a serious deregulatory effort should be undertaken to reduce sludge, through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. In most cases, these defenses of sludge turn out to be more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often argue in favor of a neglected form of deregulation: sludge reduction. For both public and private institutions,“Sludge Audits” should become routine. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"68 1","pages":"1843-1883"},"PeriodicalIF":1.9,"publicationDate":"2018-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3288192","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48508265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legitimate Yet Manipulative: The Conundrum of Open-Market Manipulation","authors":"G. Fletcher","doi":"10.2139/SSRN.3155504","DOIUrl":"https://doi.org/10.2139/SSRN.3155504","url":null,"abstract":"Is manipulation possible in the absence of misconduct? This is the foundational inquiry at the heart of open-market manipulation. Open-market manipulation captures the attention of lawmakers and courts because it is market manipulation effected entirely through facially legitimate transactions. Whereas traditional, well-accepted forms of market manipulation involve deception, fraud, and monopolistic prices, open-market manipulation involves no objectively bad acts and, instead, is accomplished through permissible transactions executed on the open market. As enforcement of this form of manipulation increases, the question arises—when, if ever, is a legitimate transaction manipulative? \u0000 \u0000To the Securities Exchange Commission and the Commodity Futures Trading Commission (“the Commissions”), the answer is simple—legitimate transactions are manipulative if the trader intends to manipulate the market. The Commissions’ enforcement actions are based on the theory that the manipulative intent of the trader is sufficient to transform otherwise legitimate transactions into open-market manipulation. But this approach is fundamentally flawed. Traders may be treated differently for the same conduct under this approach, and it leaves market actors none the wiser as to when their conduct may be considered manipulative. Indeed, the Commissions’ intent-focused approach only exacerbates the chaos that currently surrounds the law of market manipulation and makes enforcement against open-market manipulation less effective. \u0000 \u0000This Article is the first in-depth analysis of the concept of open-market manipulation, and it finds the Commissions’ approach to be sorely lacking. While the Commissions are correct to conclude that facially legitimate transactions may be manipulative, the intent-centric model is untenable. Intent is an insufficient tool in identifying open-market manipulation because it does not address the most important aspect of open-market manipulation—how open-market transactions harm the markets. Thus, this Article argues that Courts and regulators should, instead, coherently identify the necessary conditions under which open-market transactions are harmful to the markets. Specifically, this Article argues that only those open-market transactions that impede the markets’ efficiency and undermine their integrity should be deemed manipulative. Linking the theory of open-market manipulation to the purpose of anti-manipulation laws would provide the Commissions with more cogent principles on which to hold manipulators liable for their seemingly legitimate transactions.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"68 1","pages":"479-554"},"PeriodicalIF":1.9,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3155504","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44955984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Violent Birth: Reframing Coerced Procedures During Childbirth as Obstetric Violence.","authors":"Maria TR Borges","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman's choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman's right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth by importing a framework created in Venezuela and Argentina that characterizes this issue as \"obstetric violence.\" First, this Note contains an overview of the shortcomings of the existing American legal framework to address the problem. Second, it explains the advantages of the obstetric violence framework and argues that its adoption in the United States would address many of the failures of the existing system. And third, this Note introduces a few legislative and litigation strategies that can be used to implement this framework in the United States and briefly addresses some of the challenges these strategies may pose.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 4","pages":"827-62"},"PeriodicalIF":1.9,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35854123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}