Law Commons^™

Judges At The Bedside: The Case Of Joseph Saikewicz, George J. Annas

Faculty Scholarship

In what may prove to be the most controversial medicolegal decision of the year, the Massachusetts Supreme Judicial Court has ruled that, in certain cases, courts are the proper forum in which life-sustaining medical decisions should be made.1 The controversy goes deep. It involves questions of who should make life-prolonging decisions, in what forum, and on what criteria. Until the last few years, these questions arose almost exclusively in the context of Jehovah's Witnesses cases - cases in which life-saving blood transfusions were being refused for religious reasons. But with society's increasing consciousness about the way people die in hospitals, …

Abortion To Aging: Problems Of Definition In The Medical Expense Tax Deduction, Alan L. Feld

Faculty Scholarship

Administration of the medical expense deduction has generated its share of litigation and rulings. The major areas of dispute center on two questions. By far the more important question is how to distinguish deductible medical expenses from other expenses that should be characterized as personal, living, or family expenses. The statutory definition of medical care is a broad one, encompassing amounts paid for "diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body."' ¹⁰ It also includes transportation to obtain medical care." Because normal expenses of a personal nature, …

The Burger Court And The Fourth Amendment, Larry Yackle

Faculty Scholarship

In his 1974 Holmes Lectures, Anthony Amsterdam likened the Supreme Court in search and seizure cases to a committee "attempting to draft a horse by placing very short lines on a very large drawing board at irregular intervals during which the membership of the committee constantly changes." On that perception of the matter he cautioned against precipitous criticism when the completed draft resembles a camel. That advice, in my judgment, is reliable only in part. On the one hand, only the most arrogant of armchair critics would not concede that the Court's work is as difficult as it is important. …

International Products Liability Litigation: Choosing The Applicable Law, William W. Park

Faculty Scholarship

Growth in transnational commerce and travel has substantially increased the cases in which injury-causing products have significant contacts with more than one state. A defective automobile is manufactured in Italy, by an Italian company, and exported to France; it is purchased by a French student who drives it to Oxford, where a defect in the steering causes an accident and injury. Or, an Englishman on a business trip to Italy buys a box of Swiss chocolate, eats the candy during a stopover in Paris, and falls ill on arrival back in London; as a result of the illness, he is …

Principles, Positivism, And Legal Theory, David B. Lyons

Faculty Scholarship

A complete theory of law, writes Ronald Dworkin, tells us what law is and what it ought to be. The current "ruling" theory of law combines legal positivism with utilitarianism: it holds, first, that law is a set of explicitly adopted rules and, second, that law ought to maximize the general welfare. Dworkin rejects both branches of that theory. He argues that law contains "principles" as well as rules and that these principles cannot be traced to any explicit adoption or enactment. Dworkin argues further that the ruling theory neglects moral rights, which must be respected, he claims, even if …

Scientific Research With Children: Legal Incapacity And Proxy Consent, Leonard H. Glantz, George J. Annas, Barbara Katz

Faculty Scholarship

Before an investigator can use any person as a subject in biomedical or behavioral research, he must obtain that person's informed consent. This consent must be voluntary, competent, and understanding.¹ There are two questions that arise in regard to experimentation on children. First, is a child legally capable of giving an informed and understanding consent? Second, do parents have the legal capacity to consent to the performance of research on their children? This article will attempt to answer both of these questions.

World Jewry And The Ballot: The Defence Of Democracy At The World Zionist Federation And Its Potential Impact On Israel's Constitutional Law, Pnina Lahav

Faculty Scholarship

This note highlights an important phase in the history of Zionism describing and analysing a recent decision by the W.Z.F. Tribunal which held categorically and unequivocally that the W.Z.F. is a democratic movement, and as such is bound to follow the most basic rules of democracythe maintenance of equal, popular elections. It then discusses the significance of the potential impact of this decision on Israeli constitutional law. The Tribunal's firm holding that the process of an implicit constitutional amendment is illegitimate and invalid, may signal a shift in the Israeli position which has, so far recognised this technique as valid. …

The Disposition Process Under The Juveniles Justice Standards Project, Stanley Z. Fisher

Faculty Scholarship

The Juvenile Justice Standards Project volumes were publicly discussed for months prior to their publication. Unavoidably, much of the discussion was based upon rumor regarding their contents. In that context, critics charged that the proposed Standards would "destroy the nation's juvenile court system and replace it with a 'junior criminal system' "1 and claimed that the Standards substitute the philosophy of "just deserts" for the traditional rehabilitative goals of juvenile justice.' The news media described the Standards on disposition of delinquents as designed to "fit the penalty to the crime, no matter what the age of the perpetrator. '3 I …

The Standards' Recommendations On Dispositions: A Panel Discussion Panel Discussion, Stanley Z. Fisher

Faculty Scholarship

ROFESSOR STANLEY FISHER, MODERATOR: Good evening. I'd like to welcome you all here. Of all of the volumes of the Juvenile Justice Standards Project, I suppose the most controversial are those dealing with the disposition stage. They have elicited a good deal of critical comment, even though they haven't yet been published, and many of the comments and criticisms have apparently been on the basis of speculation and rumor as to what the Standards actually say. We have with us tonight to discuss these Standards two persons who have a great deal of expertise in this field. The first, on …

Radiation From Nuclear Power Plants: The Need For Congressional Directives, Michael S. Baram

Faculty Scholarship

Congress often responds to a complex problem by empowering an independent regulatory agency to enforce its legislative will. Acknowledging its own lack of knowledge and time, Congress gives the agency a measure of freedom to modify the legal requirements to fit a variety of circumstances that the legislature could not foresee. Ordinarily Congress restrains this autonomy by prescribing general criteria that the agency must consider and objectives that must be met.' These provisions enable Congress to measure the agency's progress and make necessary changes in the law. In addition, competition from other bureaus forces the agency to act vigorously or …

Allocation Of Artificial Hearts In The Year 2002: Minerva V. National Health Agency, George J. Annas

Faculty Scholarship

The rapid growth of medical technology gives rise to difficult dilemmas concerning the appropriateness of, and access to, new equipment and devices capable of maintaining life or improving its quality. Such a dilemma already exists, for example, with regard to kidney dialysis machines. In 1972, Congress amended the Social Security Act to make such machines available under Medicare to all who needed them. But almost immediately the overwhelming cost of such equipment-in the billions of dollars-made the original appropriations totally inadequate, and prompted serious questions of whether access to kidney dialysis should be made available at public expense-and, if so, …

Divorce, Tax-Style, Alan L. Feld

Faculty Scholarship

In response to the "sham divorce" tactic, the IRS recently issued Revenue Ruling 76-255. The author, professor of law at Boston University School of Law, although sympathetic with the IRS's position in the Ruling, poin4s out situations where the divorce-remarriage may possibly be considered valid because of the existence of nontax effects.

Political Censorship: Some Reflections On Its Validity In Israel's Constitutional Law, Pnina Lahav

Faculty Scholarship

On 19 January 1976, the Government of Israel announced its intention to impose censorship on two categories of information:

(1) Information about the existence or content of a document relating to Israel's foreign affairs which is classified “top secret” or similarly classified and which is addressed from Israel to a foreign country or from a foreign country to Israel.

(2) Information relating to a visit by an Israeli official to a foreign country or a visit by a foreign official to Israel, or a meeting between an Israeli and a foreign official—when no diplomatic relations obtain between Israel and that …

Variable Life Insurance, Tamar Frankel

Faculty Scholarship

No abstract provided.

Ethical Relativism And The Problem Of Incoherence, David B. Lyons

Faculty Scholarship

Ethical relativism flirts with incoherence by suggesting that incompatible judgments can both be true. This paper shows that some relativistic theories avoid incoherence while others do not. Some theories ground moral judgments on principles ascribed to social groups while others ground moral judgments on principles ascribed to individuals. Some theories regard the relevant principles as applicable to an individual’s own action (agent relativism) while others regard the relevant principles as applicable to the individual’s moral judgments (appraiser relativism). Some theories regard moral judgments as possessing truth values while others regard moral judgments as lacking truth values. Relativistic theories suffer from …

Environmental Decision-Making And Facilities Siting, Michael S. Baram

Faculty Scholarship

Facility siting is today a highly complex process involving developers, interest groups and numerous authorities at all levels of government. Measured in terms of costs and time, the process is inefficient. Measured in terms of environmental quality indicators, the process is largely ineffective in ensuring the appropriate siting and design decisions. Each of the numerous Federal, state and local authorities involved in the process in turn applies its narrowly drawn criteria to its permit and other review procedures—to accomplish its limited objectives.

When You Enter The Hospital Check Your Rights At The Door, George J. Annas

Faculty Scholarship

Civil libertarians have little difficulty appreciating the plight of prisoners or mental patients. But tell the average civil libertarian that there are significant and unnecessary restrictions on the individual rights and liberties of patients in general hospitals, and you are likely to encounter a blank stare. There are a number of reasons for this lack of attention to hospitals. One is the general misconception that the problems are minor, or that certain temporary restrictions on individuals are essential if hospitals are to treat sick people properly. An unconscious desire not to perceive ourselves as being at risk may be another …

On Justifying Enforced Requirements: A Reply To Baier, David B. Lyons

Faculty Scholarship

There are limits to the possible subjects of justification. Typically, it concerns human behavior and things that human intervention can affect. Failing special circumstances, it makes no sense to speak of justifying the weather. There may be other limits to the class of possible subjects for justification; for example, it is sometimes said that a thing cannot be justified unless it has been indicted, though it is not clear how this claim should be taken. For there simply may be no point in bothering to justify something that is not suspect in some way, and the relevant condition can generally …

Medical Malpractice Litigation Under National Health Insurance: Essential Or Expendable, George J. Annas

Faculty Scholarship

"Medical malpractice" denotes the basis for a civil action brought by a patient against a physician for injuries resulting from negligence. The current method for compensating victims of these occurrences is primarily a fault-and-liability insurance system. The first principle of tort liability is that the party at fault pays for the damage inflicted upon an innocent victim. Whether a doctor is at fault is determined in an adversary proceeding, with both the doctor and the patient represented by counsel. The triers of fact have the task of ascertaining whether the defendant was at fault, and if so, what compensation he …

Some Regulatory Implications Of Technology Assessment, Michael S. Baram

Faculty Scholarship

To conclude this wide-ranging panel discussion, I want to briefly address two aspects of regulation which have been troublesome, and for which Technology Assessment may be particularly useful.

The first aspect, which relates to radiation and other hazardous substances in general, is the increasingly important regulatory function of forcing the development and application of appropriate control technologies on industry-normally, the development and application of devices and techniques to protect public and worker health and safety. The question becomes: Is the regulatory program appropriately forcing and guiding necessary advances in control techniques and their timely use?

Thoughts On Rodriguez: Mr. Justice Powell And The Demise Of Equal Protection Analysis In The Supreme Court, Larry Yackle

Faculty Scholarship

Since the fall of 1969 when Warren Earl Burger took his seat as Chief Justice, the academic community has placed the Supreme Court under a thorough and searching examination. Coming on the heels of enormous and far-reaching activity in the judicial branch, the Burger Court has been called to account for both its adherence to and its rejection of the Warren Court's innovations in constitutional adjudication. The purpose of this article is to continue that constructive criticism by taking stock, after five years, of the Court's performance in one significant class of cases-those interpreting the equal protection clause of the …

Law And Medicine: Myths And Realities In The Medical School Classroom, George J. Annas

Faculty Scholarship

The goal of legal education in a nutshell is to get the student to "think like a lawyer." The goal of medicolegal courses in medical schools, on the other hand, has often seemed to be to get the medical student to think bad things about lawyers. While the total solution to the legendary distrust between these two professions may not be an understanding of methodology, this article will suggest that one way to increase cooperation between the professions is to teach law in medical schools in a way that emphasizes methods of approaching problems and which seeks to dispel the …

The Victim's Role In Criminal Prosecutions In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

The purpose of this paper is to review developments which have occurred in the victim’s role in criminal prosecutions under Ethiopian law. In contrast to the penal laws of modern Western states, which define a wide range of wrongful conduct as offensive to the state itself, the traditional Ethiopian law of wrongs viewed relatively few offenses thus. For the most part, the state confined itself to legitimating and assisting the victim’s own efforts to obtain redress.

The Burger Court, 'State Action', And Congressional Enforcement Of The Civil War Amendments, Larry Yackle

Faculty Scholarship

There is an uncertainty abroad in the land. At its root, to speak boldly, lies the fear that the fate of individual liberty in this Nation is in the hands of a Supreme Court whose newest members, cast in the intellectual likeness of a disgraced Executive, lack sufficient sensitivity to libertarian ideals to preserve the American democracy as we know it. Particularly for those who found in the Warren Court the moral leadership necessary to move the country toward a just resolution of the perplexing social problems that plague us all, the skies seem dark. Our constitutional system has always …

The Scope Of The Sixth Amendment: Who Is A Criminal Defendant?, David Rossman

Faculty Scholarship

When the Supreme Court, in Argersinger v. Hamlin, extended the right to counsel to misdemeanor defendants facing imprisonment, it raised the prospect of an eventual expansion of this right to defendants in all criminal prosecutions. This expansion appears to be the probable culmination of the historical development of the right to counsel. While prediction from a trend is never fully satisfactory, a trend toward such expansion exists nonetheless. The interpretation of the scope of the sixth amendment right to counsel as applied to the states has evolved from application to defendants in capital cases, to application to those whose lack …

The Division Of Legal Labor In Rural Haiti, Pnina Lahav

Faculty Scholarship

This paper explores the institutional facilities available to Haitian peasants for the settlement of their disputes. More specifically, it compares the institution of the Chef de Section - the lowest administrative appointee in the Haitian countryside and the Justice of the Peace - the lowest ranking judicial institution provided by the Haitian legal system. The paper further advances the hypothesis that at the present time there is a shift in the division of labor between the two institutions, in favor of the Justice of the Peace, and that this shift may be attributed to processes of social differentiation currently detectable …

"Fitness" For Birth And Reproduction: Legal Implications Of Genetic Screening, George J. Annas

Faculty Scholarship

The introduction of accurate methods to screen for genetic defects in the adult, the newborn, and the fetus promises to increase man's control over his own destiny. If that promise is to be realized, however, careful planning will be needed to prevent the technology of screening from imposing its own ethic on man. The invention of the club enabled man to increase his ability to hunt for food, and simultaneously to brutalize his fellow man. In the same way, while advances in genetic screening could lead to an increase in self autonomy for a few, they may also encourage the …

Taking Stock Of Detainer Statutes, Larry Yackle

Faculty Scholarship

A detainer is a warrant or hold-order placed on a person already in custody to insure that the prisoner, upon completion of the term he is serving, will be available to the authority which filed the detainer. While penal and correctional methods and philosophies have moved far along the road of progress, this system has persistently and imperturbably plagued penal administrators, courts, and institutional personnel. Unnumbered times a detainer has proved the stumbling block to a law violator on his way to recovery.

The Nature Of The Contract Argument, David B. Lyons

Faculty Scholarship

As truth is the first virtue of belief, so justice is of social institutions. That is John Rawls's view, and it seems true, at any rate, of the law. Official acts, laws, and legal arrangements generally are characterized as just or unjust, while other moral categories are much less frequently invoked. Justice seems inseparable from good law. It is therefore striking and important that justice has recently been regarded by prominent legal theorists as rationally disreputable--as, in Kelsen's words, "an irrational idea." Many divergent conceptions of social justice have been propounded, and it is held that there is no rational …

Implications Of Minority Interest And Stock Restrictions In Valuing Closely-Held Shares, Alan L. Feld

Faculty Scholarship

The federal estate and gift taxes levy on the gratuitous transfer of wealth by both testamentary and lifetime disposition. The amount of the tax depends on the value placed on the property transferred by the decedent or donor. When the property transferred consists of shares of stock in a closely held corporation, there often exists no ready market to help in valuation. As a result, the value of the shares used to compute the federal estate or gift tax must be determined first by appraising the value of the enterprise, and then by allocating some portion of that value to …