Legislation Commons^™

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

Law In Regression? Impacts Of Quantitative Research On Law And Regulation, David C. Donald

David C. Donald

Quantitative research (QR) has undeniably improved the quality of law- and rulemaking, but it can also present risks for these activities. On the one hand, replacing anecdotal assertions regarding behavior or the effects of rules in an area to be regulated with objective, statistical evidence has advanced the quality of regulatory discourse. On the other hand, because the construction of such evidence often depends on bringing the complex realities of both human behavior and rules designed to govern it into simple, quantified variables, QR findings can at times camouflage complexity, masking real problems. Deceptively objective findings can in this way …

"Unnatural Deaths," Criminal Sanctions, And Medical Quality Improvement In Japan, Robert B. Leflar

Robert B Leflar

A worldwide awakening to the high incidence of preventable harm resulting from medical care, combined with pressure on hospitals and physicians from liability litigation, has turned international attention to the need for better structures to resolve medical disputes in a way that promotes medical safety and honesty toward patients. The civil justice system in the United States, in particular, is criticized as inefficient, arbitrary, and sometimes punitive. It is charged with undermining sound medical care by encouraging wasteful expenditures through defensive medicine; by driving information about medical mistakes underground where it escapes analysis, undercutting quality improvement efforts; and by forcing …

Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille

Susan Freiwald

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.

This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …

Reform Of The United States Health Care System: An Overview, Robert B. Leflar

Robert B Leflar

This essay, written for readers unfamiliar with the details of American health law and policy, portrays the essential features of the battle for health reform in the United States and of the law that survived the battle: the Patient Protection and Affordable Care Act (PPACA). The essay summarizes key aspects of the U.S. health care system and how it compares in terms of costs and results with other advanced nations’systems. The political and legal conflicts leading up to and following PPACA’s enactment are described. The major features of the law, attempting to address problems of access to health care, quality, …

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Robert B Leflar

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations’ medical law systems. The paper addresses criminal sanctions for Japanese physicians’ negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries. Among the paper’s findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

The Regulation Of Medical Malpractice In Japan, Robert Leflar

Robert B Leflar

How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts' adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; …

Interpreting Bills Of Rights: The Value Of A Comparative Approach, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Medical Error As Reportable Event, As Tort, As Crime: A Transpacific Comparison, Robert B. Leflar, Futoshi Iwata

Robert B Leflar

All nations seek to reduce the human toll from medical error, but variations in legal and institutional structures guide those efforts into different trajectories. This article compares legal and institutional responses to patient safety problems in the United States and Japan, addressing developments in civil malpractice law (including discoverability of internal hospital documents), administrative practice (including medical accident reporting systems), and - of particular significance in Japan - criminal law. In the U.S., battles over rules of malpractice litigation are fierce; tort law occupies center stage. The hospital accreditation process plays a critical role in medical quality control, and peer …

Informed Consent And Patients' Rights In Japan: 2001 Epilogue, Robert B. Leflar

Robert B Leflar

Japan is on a steeper trajectory toward the incorporation of informed consent principles into medical practice than the “gradual transformation” observed in a 1996 article, Informed Consent and Patients’ Rights in Japan. Among the most significant recent developments from 1996 to 2001 have been these seven: (1) the 1997 enactment of the Organ Transplantation Law permitting the use of brain death criteria in limited circumstances in which informed consent is present; (2) the strengthening of patients’ rights in clinical drug trials; (3) the continued trend toward increasing disclosure to patients of cancer diagnoses; (4) initiatives by the health ministry toward …

Informed Consent And Patients' Rights In Japan, Robert B. Leflar

Robert B Leflar

This article analyzes the development of the concept of informed consent in the context of the culture and economics of Japanese medicine, and locates that development within the framework of the nation's civil law system. Part II sketches the cultural foundations of medical paternalism in Japan; explores the economic incentives (many of them administratively directed) that have sustained physicians' traditional dominant roles; and describes the judiciary's hesitancy to challenge physicians' professional discretion. Part III delineates the forces testing the paternalist model: the undermining of the physicians' personal knowledge of their patients that accompanies the shift from neighborhood clinic to high-tech …