Digital Commons Network^™

Confrontation, Experts, And Rule 703, Paul C. Giannelli

Faculty Publications

The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

Breaking The Cycle Of ‘Unequal Treatment’ With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah Yearby

Faculty Publications

Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 ("Title VI") and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act ("ACA") as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …

Introduction - Symposium Issue On Health Data Security Systems, Sharona Hoffman

Faculty Publications

Introduction to the Health Data Security System symposium 2012 Huston, TX.

Balancing Privacy, Autonomy, And Scientific Needs In Electronic Health Records Research, Sharona Hoffman, Andy Podgurski

Faculty Publications

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces.

This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It …

Professional Power And The Standard Of Care In Medicine, Maxwell J. Mehlman

Faculty Publications

Since before the founding of the Republic, American medicine has been fighting a war to control the standard of care that physicians are expected to provide to their patients. It has waged battles on two fronts: against internal disagreements within the profession over what constitutes proper care, and against attempts to delineate the standard of care by forces outside the profession, such as private health insurers, the government, and the judicial system.

Laura Chisolm: Colleague, Peer, Friend, Jonathan L. Entin

Faculty Publications

Tribute to Laura Chisolm

Wetlands, Property Rights, And The Due Process Deficit In Environmental Law, Jonathan H. Adler

Faculty Publications

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands …

Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin

Faculty Publications

Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH

The Promise Principle And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky

Faculty Publications

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of Contract law, have importantly contributed to rescuing Contract law from absorption into Tort law and from the imposition of externally imposed standards that are collective in origin. It makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this essay questions whether a promise centered system derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty …

Drug-Drug Interaction Alerts: Emphasizing The Evidence, Sharona Hoffman, Andy Podgurski

Faculty Publications

Many analysts and users of contemporary clinical decision support ("CDS") systems have expressed grave concerns about the technology’s efficacy and functionality. Alerts generated by CDS systems are often inaccurate, and an excess of alerts leads some physicians to experience "alert fatigue" and to turn off CDS altogether. This article formulates recommendations to improve drug-drug interaction (DDI) alerts.

The paper comments upon a proposal by Susan Ridgely and Michael Greenberg, who call for the development of a consensus-based "clinically significant drug-drug interaction list" that could generate limited liability protection for users. We argue that instead of creating a list of always-contraindicated …

All For One And One For All: Informed Consent And Public Health, Jessica Wilen Berg

Faculty Publications

The concept of informed consent is well established in the field of bioethics, but its application is unclear in the area of public health. The increasing prevalence of public health interventions creates a need to analyze the scope of government power as it relates to individual choice. This Article explores three different types of public health measures in which individual choice has been limited: (1) environmental interventions; (2) classic public health interventions to prevent contagious disease; and (3) public health information reporting or use. The reasons for limiting informed consent vary depending on the context, and the implications for the …

Wilbur C. Leatherberry: A Cwru Lifer, Jonathan L. Entin

Faculty Publications

Tribute to Wilbur Leatherberry.

The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli

Faculty Publications

In February 29, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (29). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”

Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious …

Water Rights, Markets, And Changing Ecological Conditions, Jonathan H. Adler

Faculty Publications

Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This essay, written for the Environmental Law Symposium on 21st Century Water Law, presents an alternative view. Specifically, this essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case …