Law Commons^™

Negligence, Causation And Information, Stephen G. Marks

Faculty Scholarship

This note suggests a model to unify, in a simple information-based framework, the notion of negligence and the various notions of causation. In effect, the model demonstrates that negligence, probabilistic cause and cause-in-fact represent an identical concept applied to different information sets. This note uses the unified framework to develop a simple algorithm for the practical application of the principles of causation in the law of negligence.

Into The Hands Of Strangers, George J. Annas

Faculty Scholarship

Movie critic David Denby has asserted that American theatergoers are a "professional avant-garde audience" who "cannot be shocked by what others would find unintelligible... [and] have lost the capacity for outrage."' This analysis of American theater can be aptly applied to clinical medical education.

I assume almost every nonmedical professional reading "Death at a New York Hospital" will be horrified and outraged at the "treatment" Ms. Hewitt was subjected to in the hospital. Many physicians will too; but it is likely that more will be as understanding of the actions of the intern and residents as was Dr. A, the …

The Dog And His Shadow: A Response To Overcast And Evans, George J. Annas

Faculty Scholarship

Aesop's Fable, "The Dog and the Shadow," begins with a dog walking over a bridge with a piece of meat in his mouth. Looking down into the stream, he sees his shadow. Thinking it is a bigger dog, with a piece of meat twice the size of his own, the greedy dog decides to get it. Snarling, he opens his mouth to attack. At that moment the meat falls from his mouth, into the stream. The dog realizes his mistake, and sadly says to himself, "Grasp at the shadow and lose the substance."

Drs. Overcast and Evans have not yet …

Formal Justice And Judicial Precedent, David B. Lyons

Faculty Scholarship

Despite the encroachment of legislation on matters that used to lie within the province of the common law, considerable scope remains for the judicial practice of following precedent, without challenging the authority of written law. For decisions must still be rendered where legislation has not yet intervened, and interpretations of written law can be accorded precedential force.

Why should courts follow precedents? When past decisions are unobjectionable on their merits, the practice is relatively unproblematic. It might, perhaps, be justified by the usual argument that it makes judicial decisions more predictable. That justification hardly seems, however, to confront the fact …

Fair Representation As Equal Protection, Michael C. Harper, Ira C. Lupu

Faculty Scholarship

In this Article, Professors Harper and Lupu argue that a model of "principled democracy" can systematize the now-disjointed body of labor law that imposes upon labor unions a duty of fair representation (DFR). The authors derive the framework for this model from the normative principle at the core of equal protection theory - that decisionmakers must accord "equal respect" to all within their jurisdiction. To transform equal protection doctrine into standards for the DFR, the authors strip away the institutional components of equal protection doctrine that are appropriate for judicial review of decisions made by public officials but inapplicable to …

Regulating Heart And Liver Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the United States. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal in nature, and thus neither are the solutions. Heart and liver transplants are extreme and expensive medical interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant …

A Truce In The Takeover Wars?, Gary S. Lawson

Faculty Scholarship

To a casual observer, hostile corporate takeovers may seem as pointless and destructive a form of modern warfare as the Iran/Iraq conflict. "Raiders" strike with bear hugs, junk bonds, and two-tier tender offers. Incumbent managers respond with poison pills, greenmail payments, shark repellents, and golden parachutes. Congress is wearying of the strife, and may soon impose a cease-fire on the combatants -but to whose benefit?

Regulating Heart And Liver Transplants In Massachusetts: An Overview Of The Report Of The Task Force On Organ Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the country. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal and thus neither are their solutions. Heart and liver transplants are extreme and expensive interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant procedures and other extreme …

Antitrust: Fear Of Fairness, Gary S. Lawson

Faculty Scholarship

In December 1985, a comprehensive Reagan administration plan for both substantive and procedural reform of the antitrust laws was made public. Under the plan, the Justice Department's 1984 merger guidelines would be codified in the Clayton Act; restrictions on interlocking directorates would be relaxed; industries affected by imports could seek antitrust waivers as an alternative to tariffs or quotas; plaintiffs could be assessed attorneys' fees for filing frivolous antitrust suits; treble damages would be eliminated in many cases; and the full share of damages of settling defendants (instead of just the settlement amount) would be deducted from the damages available …

Limits To Attorney-Client Confidentiality: A Philosophically Informed And Comparative Approach To Medical And Legal Ethics, Nancy J. Moore

Faculty Scholarship

The proper limits to attorney-client confidentiality are hotly debated by lawyers and legal scholars. Various drafts of the proposed Model Rules of Professional Conduct have included controversial provisions which call for the disclosure of adverse evidence and client perury, as well as more liberal disclosure of completed and intended client wrongdoing than is currently permitted under the Model Code of Professional Responsibility. This Article takes a comparative approach to the problem, utilizing a body of philosophical literature which explores the principle of confidentiality in the physician-patient context This "philosophically informed" approach sets out an analytical framework in which the controversies …

Explaining Habeas Corpus, Larry Yackle

Faculty Scholarship

The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …

Insider Trading As Victimless Crime, Gary S. Lawson

Faculty Scholarship

Insider Trading as Victimless Crime

Few corporate-governance issues arouse as much indignation in the general press as insider trading. Allowing executives to reap trading profits based on their knowledge of internal corporate developments is widely viewed as grossly unfair-though it is not always clear who is victimized by this unfairness. Sometimes the companies that the insiders work for suffer harm, but other times they welcome the trading. Outside shareholders may envy the profits of inside traders, but proving that they are harmed by the practice is much more difficult. On the whole, the most common grievance against insider trading is …