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I. Glenn Cohen - Assistant Professor of Law

I. Glenn Cohen

Which courses are you teaching? How do you decide what to teach each year?

I’ll teach three courses next year.

I’ll first-year Civil Procedure. In that class I try to mix in a fair amount of litigation strategy, system design, and legal theory on top of the more doctrinal elements.

Second, I’ll teach a seminar on legal and ethical issues in reproductive technology and genetics. I try to vary the content somewhat from year to year, but in the past we’ve covered topics such as sperm donor anonymity and legal obligations, preimplantation genetic diagnosis and sex selection, preembryo disposition disputes, wrongful birth and wrongful life torts, cloning, enhancement, chimeras (human-animal hybrids), the patenting of genes and related IP issues, forensic use of genetic information, use of genetic information by employers and insurers, biobanking and the ownership of human tissue, and stem cells.

Third, I’ll be teaching a workshop with Professor Elhauge on health law policy, biotechnology, and bioethics. During twelve sessions over the course of the year we invite leading scholars (not only from law schools but medical schools, public health schools, philosophy, economics, etc) from Harvard and beyond to present works in progress in these areas to an audience of students and faculty, who get to grill them on it (or more benignly suggest extensions and improvements). It is a great way to find out what is current in the area and also connect HLS students with faculty and students from other parts of the university.

My teaching choices reflect in part what I am working on/interested in a particular year, and the kinds of courses students are excited about and would like to see more of.

Before you started teaching at HLS last fall you were an academic fellow with the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. Would you fill us in on the Petrie-Flom Center and what kinds of work you did there?

The Petrie-Flom Center is a recently formed center without parallel in our peer schools, which helps students and faculty pursue cutting edge work at the intersection of law and health care policy, bioethics, and biotechnology.

We have a student fellowship program open to second- and third- year students at the law school (and other graduate students at the university) where students get financial support to pursue a major writing project in one of the areas we cover, and are intensively mentored by our faculty and academic fellows. The goal is to help students produce publishable work in these areas, and in the spring of each year we hold a student colloquium giving our fellows as well as other students at the law school, and the university working in these areas, an opportunity to present and workshop their papers in front of faculty and other students.

Our academic fellowship (of which I was part of the first class of fellows) is a two-year full-time program that brings in law grads (although we’ve also occasionally accepted non-lawyers) to contribute to the study of our subject areas at HLS through mentoring, putting together programs, and (at their election) teaching. They spend the lion-share of their time developing their own work with the help of HLS and other Harvard faculty members with the goal of securing a full time faculty position teaching these subjects at the end of the fellowship. So far we’ve had great success in placing our fellows at schools like Harvard (Ben Roin and I), Berkeley, and BU.

Four or five times a year the Center organizes talks, panels, debates, or moot courts, for the Law School, university, and general public on cutting edge issues in these fields. For example, last year we held a moot to help prepare the respondent’s counsel for his appearance before the Supreme Court in Wyeth v. Levine, regarding whether FDA approval preempts tort law claims about negligent labeling of drugs (he won!). Before the November election we had key campaign advisers from the Obama and McCain campaigns debate their candidate’s health care policy proposals. We hosted the President’s Council for Bioethics for a lively panel on the use (and misuse) of dignity discourse in bioethics. In the past, we’ve also held events on follow-on biologics, VC funding in biotech, stem cell policy, and health and human rights, to name just a few.

Each year we also hold a large scale two-day conference aimed at bringing together leading scholars from across disciplines to develop work on pressing issues. The first year our conference was on Re-Engineering Human Biology, and culminated with public a debate between Ronald Dworkin, Michael Sandel, Leon Kass, and Judge Richard Posner. Last year our conference was on Health Care Fragmentation. This year our conference will be on Pharmaceutical Research and Development.

What kinds of research are you working on right now? To what extent do you enlist the help of students for your research?

I’ve just finished a series of three papers on reproductive technology issues. The first two examine constitutional and normative issues relating to procreative rights discourse, focusing on whether we have a “right not to be a genetic parent” when unbundled from obligations of legal or gestational parenthood, and what it might mean for a myriad of disputes in reproductive technology, such as conflicts over the disposition of cryopreserved preembryos. The third paper in this area was part of a symposium on tort liability for parents who use reproductive technology to intentionally create children with disabilities. There is a case from Maryland involving two deaf lesbians who selected a deaf sperm donor with multiple generations of deafness in his family to try and ensure that their child would be deaf. There are also reports by In Vitro Fertilization (IVF) clinics of dwarf parents attempting to ensure their child will also be a dwarf, and parents with one down syndrome child seeking to ensure their second child will be as well. My work in this article connects the question of tort liability to the philosophy of identity and Derek Parfit’s Non-Identity Problem, as well as legal theory about the function of tort law. One of the fun things about this project was trying to figure out whether we should draw distinctions between parents who achieve these outcomes through gamete or preembryo selection versus a hypothetical technology that genetically manipulated already existing preembryos.

Right now I’m pursuing a series of projects relating to medical tourism, Americans who travel to India, Thailand, and other places for medical services. The first part of the project concerns medical tourism for services that are legal in both the patient’s home country and the destination country where care is provided, but offered at a much much lower price abroad. I’m looking at whether potential quality of care and medical malpractice recovery disparities can justify attempts to curb medical tourism by uninsured Americans, and how the analysis changes if insurers begin incentivizing or mandating the use of medical tourism. The next part of the project will interface with contemporary debates in political philosophy about obligations of international justice, where I will examine how we should think about medical tourism if it improves health care access in the U.S. but has a deleterious effect on health care access by poorer residents of the destination country. I then hope to turn to writing about medical tourism for goods and services illegal in the patient’s home country but legal in the destination country, so some forms of fertility tourism, organ tourism, and the circumvention of rules restricting access to experimental drugs.

I’m also co-authoring a paper with a graduating student who has advanced training in econometrics, where we are examining what effect the introduction of state level insurance mandates in some states, which require insurers to cover IVF and other reproductive technology, has on adoption rates.

This is a good example of how I use students; I try to tailor their involvement to their level of expertise and interest. In one case that may mean co-authorship and technical work, in other cases I’ll assign them tasks to help me develop a project, like researching what has already been written in an area to which I am interested in contributing. At any one time I usually have 5 or more students working for me at various levels of intensity and kinds of tasks.

What would you say to those students interested in health law who may be considering other schools in addition to HLS?

I think HLS is hands down an easy choice for students with these interests. Most students who get into HLS have also been admitted to other very good schools, but within our very elite peer group none of them has an institution like the Petrie-Flom Center or is able to offer nearly as many courses in the area. Last year we offered more than 12 courses in the area, including courses in health care law, food and drug law, law and psychiatry, bioethics, reproductive technology and genetics, health law and economic insecurity, and many more. This is on top of our workshop, discussed above, which is unique among our peer schools.

But not only is HLS a great place to do work in these areas, we capitalize on the fact that we are at the heart of a great university that houses the leading researchers in these areas and the medical sciences, and the fact that Boston is a leading center for health care and biotechnology. We regularly get faculty from other parts of the university to teach courses at HLS: Michelle Mello and Norman Daniels from the Public Health School have taught public health law and a course on ethics and health, respectively; Michael Sandel of the Government Department has taught a course on biotechnology; Frances Kamm who holds appointments in both the Philosophy Department and Kennedy School has taught bioethics at the law school as well.

We also make it easy for students to cross-register in a much larger number of courses in the area and we have a number of students pursuing a JD/MPH with the Public Health School and a JD/PhD program with the university-wide program on health policy.

As guest lecturers, panelists, and career advisers, we also draw heavily on health care lawyers, health care providers, and those working in pharma and biotech in Boston and beyond. This allows us to connect students to these areas both academically and for careers.

I came to Harvard to teach because there is no better place for me to do the kind of work I do. Through our curriculum and the Petrie-Flom Center, we are making the same thing true for our students.

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