Torts Commons^™

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

A Better Interpretation Of The Wrongful Death Act, Dennis M. Doiron

Maine Law Review

A viable fetus is not a person under the wrongful death act, declared the Maine Law Court in a controversial decision in 1988. To reach this conclusion, the court employed one traditional and one new rule of statutory interpretation, and one traditional rule of law. The traditional rule of interpretation-that the wrongful death act is to be strictly construed because it is in derogation of the common law-dates from the earliest wrongful death cases heard by the court. The new rule of interpretation-that the death statute must be harmonized with the Maine Uniform Probate Code-derives from the enactment of the …

The Conscience Defense To Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law's role in protecting health care providers' conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Pepperdine Law Review

No abstract provided.

The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian

Maya Manian

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …

Torts: Nealis V. Baird: The Oklahoma Supreme Court Extends Fetal Rights In Wrongful Death Suits But Leaves Important Questions Unanswered, Cory Hicks

Oklahoma Law Review

No abstract provided.

Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister

Faculty Scholarship

Most courts hold that, by agreeing to have an illegal abortion, a woman forfeits her right to recover for injuries tortuously inflicted during that abortion. Nevertheless, most courts do permit suits by those injured in the course of committing other crimes, and they usually do so without considering whether plaintiff's criminal conduct should prevent recovery. Part II of this Article explores and discredits the reasons offered for prohibiting recovery in abortion suits. 21 Part III analyzes, on a chronological basis, each state's decisions prohibiting such recovery. Part IV discusses possible explanations for the abortion decisions, noting that these women's claims …

Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias, Gail D. Hollister

Villanova Law Review

No abstract provided.

After Farley V. Sartin: The Consequences Of Declaring A Nonviable Fetus A Person For The Purpose Of Wrongful Death, Stacie L. Lude

West Virginia Law Review

No abstract provided.

The Unborn Plaintiff, David A. Gordon

Michigan Law Review

It is almost twenty-five years since Professor Winfield's article "The Unborn Child" was published. The development of this area of the law during the past quarter century is probably summed up in the distinction between that title and the one to this article.