Law Commons^™

Is Jacobson V. Massachusetts Viable After A Century Of Dormancy? A Review In The Face Of Covid-19, Sawan Talwar

Touro Law Review

The COVID-19 pandemic has stretched us into the vast unknowns, emotionally, logically, politically, and legally. Relying on their police power, governments inched into the darkness of the powers’ fullest extent, leaving many to wonder whether the exercise of this power was constitutional. This Article examines the extent of the police power that both the federal and state governments have, and how Jacobson v. Massachusetts1 was the “silver bullet” for governments across the United States. Further, this Article provides an overview of police power, and the status of COVID-19 mandates. This Article additionally examines quarantine case law and provides an analysis …

Law Library Blog (March 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Sanitation: Reducing The Administrative State’S Control Over Public Health, Lauren R. Roth

Scholarly Works

On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

Covid-19, Courts, And The “Realities Of Prison Administration” Part Ii: The Realities Of Litigation, Chad Flanders

Saint Louis University Journal of Health Law & Policy

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short Article tries to explain why this is happening and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more …

The Future Of Facts: The Politics Of Public Health And Medicine In Abortion Law, Aziza Ahmed, Jason Jackson

Faculty Scholarship

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts …

Death By Virus: Why The Prison Litigation Reform Act Should Be Suspended, Divya Sriharan

Center for Health Law Policy and Bioethics

In order to save the lives of inmates, as well as redress some of the harms the prison system and the pandemic have caused them, Congress must pass a bill to temporarily suspend the Prison Litigation Reform Act. As of August 13, 2020, 95,398 inmates have contracted COVID-19. Prisons refuse to adapt or implement measures to save lives. Because of the Prison Litigation Reform Act, it is near impossible for inmates to take their cases to court. The Prison Litigation Reform Act’s requirements include: exhausting all internal administrative remedies before filing in court, not allowing suits based on mental or …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

Foreseeably Unclear: The Meaning Of The "Reasonably Foreseeable" Criterion For Access To Medical Assistance In Dying In Canada, Jocelyn Downie, Kate Scallion

Dalhousie Law Journal

Canada's medical assistance in dying legislation contains the eligibility criterion "naturaldeath has become reasonably foreseeable." The phrase "reasonably foreseeable" is unfamiliar and unclear. As a result of ongoing confusion about its meaning, there is reason to be concerned that under- or over-inclusive interpretations of the phrase are adversely affecting access to MAID. With critical interests at stake (eg access to MAiD and potential criminal liability), it is essential that the meaning of the phrase be clarified. Furthermore, the meaning of "reasonably foreseeable" will be at issue in the Charter challenges to the federal MAiD legislation currently before the courts in …

The Danger Zone: How The Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness, Sara Gordon

Scholarly Works

Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and …

Much Ado About Nothing? A Critical Examination Of Therapeutic Jurisprudence, Dennis Roderick, Susan T. Krumholz

University of Massachusetts Law Review

In the decades since the 1970s there have been several movements designed to impact or alter the workings of the legal system. The most lasting and widespread of these movements has been the development and systemic incorporation of mediation or Alternative Dispute Resolution, especially in the arena of family law but also impacting community disagreements, a variety of commercial disputes, and civil cases in general. However mediation did not significantly impact the practice of criminal law. Rapid growth in the number of individuals being processed through the criminal courts during the 1980s and 1990s shifted the focus to the criminal …

Self-Inflicted Wounds: How Military Regulations Prejudice Service Members, Kyndra Miller Rotunda, Ari Freilich

University of Massachusetts Law Review

This Article discusses two important facets of Military Regulation and veterans law. First, this Article explores how the Uniform Code of Military Justice treats veterans accused of committing self-injury. Thus, there is a prohibition on , including criminal prosecution of, attempted suicide, which this Article argues exacerbates the issues which many of our brave servicemen and women face upon returning home from combat, often carrying the burden of mental disorders such as post-traumatic stress disorder. Second, this Article delves into Air Force Regulations, which prohibits termination, without cause, once an officer reaches the rank of Major and has served at …

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

Policy Evaluation Of Hillsborough County’S Family Dependency Treatment Court, Shawn M. Martin, Kathleen A. Moore

Mental Health Law & Policy Faculty Publications

Child abuse and neglect is a troubling issue all too familiar with courts in the United States. The problem becomes even more complicated when substance abuse is involved. In 2004, approximately 500,000 children were removed from their homes because of abuse and neglect issues1. In the past few years, a judicial model appeared to address both substance abuse and child dependency issues. This model, entitled Family Dependency Treatment Court (FDTC) enables the court to mandate treatment for parents and make reunification dependent on treatment compliance. The FDTC program in Hillsborough County, Florida is now in its second year and has …

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …

Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson

Scott Dodson

This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Watch Your Language: A Review Of The Use Of Stigmatizing Language By Canadian Judges, Jocelyn Downie, Michelle Black

Articles, Book Chapters, & Popular Press

Despite ongoing advances in understanding the causes and prevalence of mental health issues, stigmatizing language is still often directed at people who have mental illness. Such language is regularly used by parties, such as the media, who have great influence on public opinion and attitudes. Since the decisions from Canadian courtrooms can also have a strong impact on societal views, we asked whether judges use stigmatizing language in their decisions. To answer this question, we conducted a qualitative study by searching through modern Canadian case law using search terms that were indicative of stigmatizing language. We found that, although judges …

Health Courts?, Philip G. Peters Jr.

Faculty Publications

This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

Criminalization Of People With Mental Illnesses: The Role Of Mental Health Courts In System Reform, Robert Bernstein, Tammy Seltzer

University of the District of Columbia Law Review

No abstract provided.

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …