Digital Commons Network^™

Feminist Spiritualities: A Brief Overview, Marilyn R. Pukkila

Faculty Scholarship

A bibliographic essay on the early beginnings of feminist spirituality literature, from the 1960s to 1998.

Regulating Through Information: Disclosure Laws And American Health Care, William M. Sage

Faculty Scholarship

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws-improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality- is the most complicated operationally. The other justifications-which he …

Standards Of Care And Standard Form Contracts: Distinguishing Patient Rights And Consumer Rights In Managed Care, Wendy K. Mariner

Faculty Scholarship

There is hardly a legislature in the country that is not currently debating the issue of patient rights in managed care. Not surprisingly, legislators, as well as reporters covering the debate, have called upon George J. Annas, Edward R. Utley Professor of Health Law and Chair of the Health Law Department at Boston University, for information and advice. Professor Annas has earned the title of "father of patient rights" for his decades of research, writing, and advocacy on behalf of individuals who need health care and deserve justice.

Today, however, one might ask whether patient rights are compatible with managed …

Sanctioning A Tyranny: The Diminishment Of Ex Parte Young, Expansion Of Hans Immunity, And Denial Of Indian Rights In Coeur D'Alene Tribe, John P. Lavelle

Faculty Scholarship

This Article analyzes a recent decision of the Supreme Court that illustrates the enormous destructive power of the Rehnquist Court's peculiar brand of anti-tribal activism, Idaho v. Coeur d'Alene Tribe. Coeur d'Alene Tribe is likely to heighten the urgency with which Eleventh Amendment scholars have called for an overruling of Hans to ameliorate the damage that Hans and its progeny already have done to the regime of federally protected rights under the Constitution, laws and treaties of the United States-a regime at the core of the Framers' vision of paramount federal law and essential to securing true liberty for all …

Of Textualism, Party Autonomy, And Good Faith, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Physicians As Advocates, William M. Sage

Faculty Scholarship

The principal theme of this Article is that many dimensions of physicians' advocacy in managed care remain to be established, and those dimensions may turn out to be inconsistent with one another or with normative goals for the health care system. Specifically, attempting to map physician behavior onto an advocacy template created for lawyers raises three difficult questions. First, given the undisputed importance of clinical expertise to an efficient health care system, should physicians' primary role be to advocate for causes or to direct the provision of care? Second, would the medical professions' reputation for independent competence withstand the adversarial …

Entrenching Interests: State Supermajority Requirements To Raise Taxes, Max J. Minzner

Faculty Scholarship

At the opening of the 104th Congress, the new Republican majority imposed the first supermajority requirement "limited to particular cases" in the history of Congress. The unanswered question is whether the Rule is a good idea, particularly whether this Rule is well designed. The states have extensive experience with supermajority requirements for tax increases. This article attempts to answer the question of supermajority design. If alterations in the tax code are to be restricted, how should they be limited? To what type of bills should a supermajority requirement apply? At what level should the requirement be implemented? When and how …

Reinventing Environmental Regulation Through The Government Performance And Results Act: Are The States Ready For The Devolution?, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Toward A Global Critical Feminist Vision: Domestic Work And The Nanny Tax Debate, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Dreiser's Real American Tragedy, Kathryn M. Plank

Faculty Scholarship

No abstract provided.

The Last Resort: The Use Of Physical Restraints In Medical Emergencies, George J. Annas

Faculty Scholarship

Public awareness of the use of restraints in medicine has been greatly heightened by a five-part investigative series on physical restraints in psychiatric hospitals by the Hartford Courant and reaction to it by Connecticut's U.S. senators, Joseph Lieberman and Christopher Dodd. In October 1998 the Courant 's 50-state survey identified 142 patients who had died while in restraints or seclusion in the past decade, and the total number is probably much higher. The newspaper advocated the need for national standards for the use of restraints, impartial oversight, and accountability “for behavior that is cruel and even criminal.” The use of …

Revised Article 3: ''(Revise) It Again, Sam'', Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

Testing For Genetic Traits: The Need For A New Legal Doctrine Of Informed Consent , Elizabeth B. Cooper

Faculty Scholarship

Innovative medical technology has made it possible to test whether you are at increased risk for certain types of cancer. The mere processing of a vial of blood can reveal whether you have a genetic predisposition to develop breast, ovarian, or prostate cancer, or other life-threatening conditions. The Human Genome Project, an international endeavor seeking to map our genetic structures, has facilitated this increasing ability to test for genetic flaws. It is expected that as the human genetic map is filled in, and as flaws in our fundamental building blocks are identified, there will be a concomitant drive to test …

Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin

Faculty Scholarship

On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …

When Bad Things Happen To Good Intentions: The Development And Demise Of A Task Force Examining The Drugs-Violence Interrelationship Symposium On Drug Crimes, Deborah W. Denno

Faculty Scholarship

Between 1994-1996, I was one of twenty-eight members of a Drugs-Violence Task Force, created to report to the United States Sentencing Commission specific findings, conclusions, and recommendations concerning the interrelationship (if any) between drugs and violence. Much of the controversy concerning how to approach the drugs-violence problem reflects two conflicting and long-held views of drugs and crime: the criminal justice view, which emphasizes detecting and punishing drug offenders, and the public health view, which advocates treating the drug addiction that leads some individuals to commit crime. Traditionally, the criminal justice view is associated with a “tough on crime” attitude that …

Using Improvisation To Teach Communication In An Academic Medical Center, Debra Gerardi

Faculty Scholarship

No abstract provided.

Miller V. Albright: Problems Of Constitutionalization In Family Law, Katharine B. Silbaugh

Faculty Scholarship

From time to time, the Supreme Court chooses to hear a case addressing a family law issue. The family law cases accepted by the Supreme Court almost always present a constitutional challenge because absent a constitutional question, state law governs family law. Because the Supreme Court controls its docket, it is free to select only those cases that, in the view of the Court, pose particularly challenging issues. On most occasions, the Court chooses only those family law cases that present other, unrelated issues of interest to the Court.

The Maladaptation Of Miranda To Advance Directives: A Critique Of The Implementation Of The Patient Self-Determination Act, Thaddeus Mason Pope

Faculty Scholarship

In this Article, Thaddeus Pope argues that the Patient Self Determination Act (PSDA) is a failure on its own terms. The Article first identifiesthe central purpose of the Act as the protection of patient autonomy. The Article then reviews much of the empirical research on the implementation of the Act. This research suggests that the medical preferences expressed in advance directives completed pursuant to the PSDA are usually not based on real understanding because patients are merely "Mirandized" of their right to direct their post-autonomous medical care. Although some scholars contend that this is the most that can be expected …

A Comparative Analysis Of Women's Issues: Toward A Contextualized Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

"This Article proposes a methodology for comparative analysis of women's rights using insights from critical race theory and feminism. Comparative analysis by a Western scholar must reconcile a perspective developed in the United States with respect for another culture. In discussing women's rights, lawyers, judges, students and sociologists have justified certain women's situations as an inherent aspect of culture. For example, traditional "female genital surgery" has been defended as a "mere bodily mutilation" that is the "sine qua non of the whole teaching of tribal law, religion, and morality." In Mexico, "machismo" has been justified as an immutable characteristic of …

Commercial And Corporate Lawyers 'N The Hood, Alfred Dennis Mathewson

Faculty Scholarship

I shall begin the development of this proposition with a theme from a "Last Lecture" I was asked to deliver by the UNM Campus Ministries several years ago. I was asked to pretend that I would die immediately after giving the lecture. I opened the lecture with a story my mother used to tell us about the time she was traveling on Trailways with two of my older brothers, then toddlers. The bus driver asked her to move to the back of the bus. She had not wanted to get up but decided that compliance with the demand was in …

The Legal And The Ethical In Legal Ethics: A Brief Rejoinder To Comments On The Practice Of Justice, William H. Simon

Faculty Scholarship

We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment, and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.

I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my …

Face-Ing The Other: An Ethics Of Encounter And Solidarity In Legal Services Practice, Marie Failinger

Faculty Scholarship

In this article, the author proposes that those who work in any capacity with impoverished clients and embattled minority communities imagine practice from within Levinas' key images. First, that ethics is first philosophy - that knowledge of the self, the Other and the context in which ethical action is possible does not precede ethical understanding, decision-making and action, but that rather that we become human in the ethical encounter with the incommensurable Other. Second, that representing a client is in each moment an encounter with the face of the Other. We look up into the face of the Other calling …

Taking The "I" Out Of "Team": Intra-Firm Monitoring And The Content Of Fiduciary Duties, Eric L. Talley

Faculty Scholarship

Depending on whom one asks, the last decades' proliferation of statutory business structures is a cause for either celebration or concern. Some laud this recent trend, arguing that a highly permutated menu of tax treatments, liability limitations, and governance hierarchies facilitates the alignment of legal status with organizational need. Others view statutory variety more skeptically, warning that it may simply portend greater cost externalization, strategic behavior, and distributional inequity. But one set of legal doctrines has persisted throughout: the concept of fiduciary duty. Indeed, fiduciary obligations remain fundamental to the legal governance structure of virtually every statutory business entity.

That …