Commentary on “ERISA and the Failure of Emplloyers to Perform Their Fiduciary Duties: Evidence from a Survey of Health Plan Administrators.”

This paper explores the interplay between intellectual property and gender in modern design law and practice, with a focus on the New Zealand Designs Act 1953 and references to Australian, United Kingdom and European Union law. It highlights how law and practice favour technical, utilitarian design principles (that coded masculine), but neglect the dynamic, sensory and affective (embodied and emotive) aspects of designs (that coded feminine). Through its focus on the technical, design law and practice ignore the socio-legal reality that the dynamic, sensory and affective are often central to a design’s success. The paper frames the foregoing in standpoint theory and affect. It challenges the focus on that which can be reduced to technical-based representation and the perception that this creates an objective master copy. The paper calls for a reassessment of what design law protects and how it protects it, to better align the system with the socio-legal realities of design creation and use.

This article explores the connection between health and democracy, positing that public health is rooted in political decisions and that improving health outcomes and advancing health equity requires strengthening inclusive, representative democracy. It describes the relationship between civic health, civic and voter participation, power, and health outcomes, and demonstrates that communities with higher rates of civic and voter participation are linked to better population health outcomes. The authors assert that public health practitioners have the opportunity and the responsibility to improve health by democratizing their practice and supporting policies and approaches which strengthen civic health and promote civic and voter participation. The authors also provide detailed stories from two health agencies — Wisconsin and Minnesota — illustrating these efforts in action and offer several strategies for how practitioners can incorporate this work into their scope of practice.

Dantuluri examines the ongoing prescription stimulant shortage driven by the Drug Enforcement Administration’s quota restrictions and an ineffective and fragmented system of drug governance. We extend this analysis to carceral health systems, which operate under similar logics of control in managing risks, diversion, and liability around medications for opioid use disorder. In drawing these parallels, we explore how perceptions of risk, suspicion, and restrictive oversight can produce scarcity, reinforce stigma, and elicit judgments around “deservingness” that may ultimately widen treatment gaps. We conclude with actionable recommendations that align with public health ethics to promote equitable access to evidence-based treatment.

This article will focus on the use of AI tools in diagnosis and patient treatment in hospitals and health care systems.2 AI vendors promise efficiencies in workplaces: various forms of AI are already being developed to read x-rays and other medical scans, to diagnose a wide range of patient conditions, and to offer a partnership (or risk displacement) of physicians. AI is being pushed to transform medical diagnostics, care quality, patient safety, clinical experience, and efficiencies all over hospital operations. These AI technologies however are still novel and new, and studies proving efficacy or disclaiming it are often based on small scale studies or other limitations.

I will take a quick look at the tools that comprise the use of AI in health care and the claims of effectiveness of AI alone or in partnership with physicians in making clinical decisions. I will then look at the ways in which AI can fail to meet its promises, causing serious harms. Finally, I will examine the prospects of a hybrid regulatory/liability model to regulate AI risks as hospitals and providers expand their uses of AI tools.

What does it mean to be a citizen? To be equal in birth and stature as others born in the same land? How does law answer these questions and are the answers satisfying? Have the goalposts of citizenship shifted such that old, exlusionary notions of citizenship based on wealth, race, and sex now dangerously infect our society? These questions and this Essay are derived from the 2025 Presidential Address given at the Law and Society annual meeting.

Drug overdose and drug-related harm are major sources of preventable injury and death in the United States. The criminalization and stigmatization of people who use drugs continues to inform law and policy that is ineffective at preventing this harm. While harm reduction interventions such as syringe services programs (SSP) have been widely adopted, the laws that govern these programs often impose restrictions that make SSP operation more difficult and less effective. For example, 23 state permit SSPs to operate only if they receive authorization from state or local government officials, and 5 states continue to adhere to some version of a “one for one” exchange model. This article presents data on these and other state laws that impede the work of SSPs. It also highlights ways the experience and expertise of people who use drugs can be integrated into the creation and implementation of SSP operational models. Removing barriers to these life-saving programs is critical to decreasing drug-related harm.

The 2025 Public Health Law Conference theme — Connection. Collaboration. Community. — acknowledges this critical time in public health — a time when survival and progress both require working together to best leverage laws and policies. This symposium issue of the Journal of Law, Medicine & Ethics is dedicated to an examination of some of the critical topics discussed at this conference.

In recent debates about the proper approach towards the interpretation of contract terms insufficient attention has been paid to the history of the subject. A close examination of that history shows that there are strong traces of both textual and contextual approaches. The balance between them is not however constant. Opposing factors have pulled in different directions at various times. It is not true to say that before modern times judges were necessarily wedded to the text of contracts. In fact, there is a very prominent seam of contextualism.

What does conducting law and society scholarship have anything to do with wilting blooms? In this essay, Lynette J. Chua makes the connection between the two through her reminder to law and society scholars to study the taken-for-granted, an intellectual project that has become all the more urgent as politicians and activists contest concepts such as citizenship, gender, territories, religion and rights. She also calls upon fellow law and society scholars to be humble – for the significance and impact of our research, like flowers, could come and go with the seasons.

When a prospective participant in clinical research appears perhaps to lack decision-making capacity, many investigators do a capacity evaluation themselves, and if the person lacks capacity, reach out to the next of kin, presuming them to be the legally authorized representative (LAR) to consent (or not) on that person’s behalf. However, that approach often does not actually comport with applicable law. This article begins with some history, explaining how, if there is no state law specifically governing clinical research, Institutional Review Boards have been instructed to base their policies concerning capacity determination and surrogacy selection on that jurisdiction’s laws governing ordinary healthcare. A deep dive into many states’ statutes reveals a remarkable, hitherto largely unrecognized diversity of provisions that, in turn, create unexpected legal and ethical hazards for investigators whose research participants may lack capacity. Several potential resolutions are suggested.

For more than a century, US courts generally deferred to public health authorities, recognizing their expertise and the necessity of swift, science-based action to protect population health. This deference supported legal interventions that substantially increased life expectancy, reduced morbidity, and advanced health equity. In recent years, however, courts — particularly the Supreme Court — have retreated from this approach. Specifically, Supreme Court–driven doctrinal shifts favoring free exercise challenges, limiting deference to administrative agencies, and undermining equal protection have eroded public health authority and constrained governments’ capacity to protect health and improve equity. Drawing on an empirical review of 30 lawsuits filed between January 2024 and May 2025 challenging governmental and institutional health equity initiatives, the paper demonstrates that the majority of these cases resulted in the invalidation or abandonment of equity-focused policies. These findings illustrate how contemporary judicial rulings are limiting governments’ and institutions’ authority and ability to safeguard health, particularly the health of our most vulnerable and marginalized populations. The paper concludes with a call to action: a coordinated public health strategy to build and sustain a jurisprudence that supports the fair, effective, and evidence-based exercise of public health authority.

The use of AvertD, a genetic test to assess an individual’s risk of developing opioid use disorder, will expose physicians to liability. Critics of the test argue that the test itself is unreliable, often resulting in false positives, which will lead to potential undertreatment of pain, and false negatives, which will lead to inappropriate opioid prescriptions. But if the test is available, physicians will use it. And often, due to a combination of genetic determinism and genetic illiteracy, physicians will rely on the test to make opioid prescription decisions without also looking to the environmental, socioeconomic, lifestyle, and other factors that contribute to an individual’s opioid use disorder risk.

Genetic test results that purport to predict opioid use disorder — or really, any behavioral or psychiatric trait or diagnosis — may have enormous consequences for individual lives. When patients are harmed by physicians’ negligent clinical decision making, they can often turn to tort law for a remedy. This article covers various physician liability scenarios, from inappropriate prescribing based on genetic test results to failure to test and informed consent issues. Physicians could face liability for prescribing opioids after a positive test result, or for denying pain medication due to false positive test results, or for prescribing opioids to patients despite negative results that prove false, or for failing to administer the test at all. This article concludes that existing tort frameworks offer insufficient protection for patients and fail to ensure appropriate integration of these tests into clinical practice. And relying on tort law will not mitigate the individual and societal harms raised by the introduction of a polygenic risk score test for opioid use disorder.