Law Commons^™

End-Of-Life Decision Making: What We Don’T Know, We Make Up; What We Do Know, We Ignore, Sandra H. Johnson

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The recent emergence of substantial empirical research in bioethics reveals gaps between “reality” and the normative principles that largely instruct American bioethics and the legal framework of health care. This Article examines how the debate over the appropriate source of legal and ethical norms in medicine has been played out in judicial decisions regarding the legalization of physician-assisted suicide.

The article begins with an analysis of the Ninth Circuit’s 1996 majority opinion in Compassion in Dying v. Washington, later reversed by the Supreme Court. In support of the legalization of physician-assisted suicide, the Ninth Circuit emphasized the role of empirical …

How Many Libertarians Does It Take To Fix The Health Care System?, Thomas L. Greaney

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The libertarian prescription for health care reform is a admixture of deregulation and purportedly utilitarian calculation of social benefits and costs. In Mortal Peril: Our Inalienable Right to Health Care?, Richard Epstein's offers a stark roadmap that embraces an unfettered free market for health care services, indigent care left primarily to the charitable impulses of providers and no cross subsidies between classes, generations or other categories of citizens (including the sick and healthy). This review essay argues that the history, economics, and politics of health markets belie Epstein's abstract reasoning. Though much of the argument in Mortal Peril is written …

The Jury Returns To Continental Europe: Russia And Spain Return To The Classic Jury As A Catalyst In A Move To A More Adversary Form Of Criminal Trial, Stephen C. Thaman

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This paper briefly compares the provisions of the Russian Jury Law of 1993 and the Spanish Jury Law of 1995 and their application in the first trials, with special attention to the effect of the re-injection of a classic jury. Citations in regard to Russia rely on the author’s exhaustive study of the legislative history of the new Russian Jury Law, its provisions, and its application in the first 114 trials in the years 1993-1994. The Spanish discussion relies on information gathered by the author on the first trials held in Spain since the law went into effect, and delves …

Spain Returns To Trial By Jury, Stephen C. Thaman

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In 1995, the Spanish Parliament reenacted trial by jury in criminal cases by implementing a mandate of the 1978 post Franco Spanish Constitution. This article discusses the 17 year dispute, following the ratification of the democratic post-Franco Spanish Constitution, on whether Article 25 mandated the reintroduction of lay participation in the criminal trial, and, if so, whether in the form of the classic jury or a continental European style court with lay assessors. This article analyzes the Law on Trial by Jury and its implementation in the first year of trials, and references Spain’s experience with trial by jury in …

Research Report: A Preliminary Analysis Of Medical Futility Decisionmaking: Law And Professional Attitudes, Richard L. Wiener Ph.D., David Eton M.A., Vincent P. Gibbons M.D., Jesse A. Goldner J.D., Sandra H. Johnson J.D.

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The debate in medical futility decisionmaking centers on the conflict between a patient insisting treatment and a doctor refusing to furnish it. Courts have taken two disparate approaches to the legal status of medical futility. Believing that such legal ambiguity may reflect ambiguity in the medical profession itself, this research report sought to identify any emerging consensus among professionals handling medical futility issues.

The report explains the results of the Life Sustaining Treatment Survey, a nationwide survey of health care professionals at hospitals. Presented with a list of criteria, respondents assigned important ratings to the factors used in recent futility …