Legal Ethics and Professional Responsibility Commons^™

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Private Requitals, Bailey Kuklin

Cleveland State Law Review

Previously, I examined the establishment of a person’s substantive rights and, correlatively, duties. But this was only the first step. This Article addresses the second step: the means for recognizing requital rights violations, including their articulation, adoption, and implementation. Taking a deontic, individualistic perspective on rights, this Article aims to delineate and protect one’s personal freedom, one’s autonomy. To do so, this Article, using a formal understanding of the categorical imperative, will examine whether an agent’s chosen maxims are deontically acceptable. The maxims need to be both first-order, substantive ones that establish autonomy boundary baselines, and second-order, requital ones that …

Why Informed Consent? Human Experimentation And The Ethics Of Autonomy, Richard W. Garnett

Richard W Garnett

No abstract provided.

Patient Racial Preferences And The Medical Culture Of Accommodation, Kimani Paul-Emile

Faculty Scholarship

One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. …

Some Reflections On Ethics And Plea Bargaining: An Essay In Honor Of Fred Zacharias, R. Michael Cassidy

R. Michael Cassidy

In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices …

Lawyers And Professional Autonomy: Reflections On Corporate Lawyering And The Doctrine Of Informed Consent, Mark Spiegel

Mark Spiegel

No abstract provided.

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Peter A. Joy

Scholarship@WashULaw

The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such …

Comment: Autonomy And The Public-Private Distinction In Bioethics And Law, Susan H. Williams

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

Defining Capacity: The Competing Interests Of Autonomy And Need, Nancy J. Knauer

Nancy J. Knauer

This Essay addresses the question of capacity - the basic threshold determination that pervades all areas of the law. An individual must have the requisite level of capacity to consent to sex, refuse medical treatment, enter into a contract, marry, divorce, relinquish parental rights, execute a will, make a gift, donate organs, vote, serve on a jury, stand trial, and even to hire a lawyer. The standards regulating determinations of capacity are not monolithic. An individual may lack the capacity to contract, but may have the requisite capacity to write a will or to refuse life-sustaining medical treatment. As individuals, …

Why Informed Consent? Human Experimentation And The Ethics Of Autonomy, Richard W. Garnett

Journal Articles

Not long ago, the welfare reform debate took a provocative turn. New Jersey welfare recipients challenged the state's Family Cap rule, which denied additional cash aid to parents who conceive children while on welfare. Welfare rights activists argued that the rule "with[held] benefits to see if [this would] alter human behavior." They insisted that the innovative, but stern, Family Cap rules were effectively experiments on welfare recipients without their consent.

This is a powerful argument. After all, consent enjoys talismanic—if not sacramental—status in modem life and thought; it is our "master concept." But why? Why should consenting mean so much …