Digital Commons Network^™

An Assessment Of The Use Of Cost-Benefit Analysis In Regulatory Agency Decision Making, Michael S. Baram

Faculty Scholarship

CONSIDERABLE dissatisfaction has been expressed with the process and results of regulatory agency decision making. Recommendations have been made that the Federal agencies employ rational, "balancing" approaches such as cost-benefit analysis in conducting their standard setting and adjudicatory functions.

This paper examines some current uses of cost-benefit analysis by several agencies in their decision-making processes, and identifies and discusses apparent limitations.

Reconciling Quinlan And Saikewicz: Decision Making For The Terminally Ill Incompetent, George J. Annas

Faculty Scholarship

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals-sometimes with the assistance of the patient's family-on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial …

Laetrile: The Battle Moves Into The Courtroom, Robert L. Schwartz

Faculty Scholarship

Controversy over the supposed cancer-curing drug laetrile continues to rage. Now it's up to the courts. substance that was used by ancient Greek physicians, has been available in the United States, legally or illegally, for a quarter of a century. The government's increased efforts to eliminate laetrile "pushing" by what are seen to be profiteering physicians has created a strengthened laetrile lobby that has successfully fought the medical establishment and succeeded in making the drug legal in more than a dozen states. The pro-laetrile lobby an assortment of cancer patients and their families, medical professionals, and conservative politicians -threatens to …

Bakke As Precedent: Does Mr. Justice Powell Have A Theory, Vincent A. Blasi

Faculty Scholarship

What does it all mean? The Supreme Court's decision in Regents of the University of California v. Bakke invites assessment at many levels. Was it really a "Solomonic compromise" worthy of our constitutional tradition, as some prominent scholars have suggested? Or does the decision represent, as I believe it does, a disturbing failure by the Court to discharge its responsibility to give coherent, practical meaning to our most important constitutional ideals? Does the uncharacteristically opaque and simplistic opinion of Justice Stevens mask deep divisions and ambivalences among the four justices who subscribed to it? Can there be any validity to …

Families With Service Needs: The Newest Euphemism, Stanley Z. Fisher

Faculty Scholarship

Juvenile court jurisdiction over "status offenders" - juveniles engaging in noncriminal misconduct such as truancy, running away, and "incorrigibility" - has become the subject of national debate. Most participants in the many-sided discussion agree that the system needs reform. The major disagreement, however, is between those who wish merely to reform the court's jurisdiction over this conduct, and those who would substantially eliminate it. This article concerns the newest reform proposal: to revise status offense jurisdiction under a new category entitled "Families With Service Needs" (FWSN). Proposed in 1977 by a federally funded task force, 5 the FWSN concept has …

The Denial Of Eleventh Amendment Immunity To Political Subdivisions Of The States: An Unjustified Strain On Federalism, Margreth Barrett

Faculty Scholarship

No abstract provided.

Implementing A Progressive Consumption Tax, Michael J. Graetz

Faculty Scholarship

Much scholarly debate has been devoted to the theoretical merits of using an individual's consumption expenditures as the basis for measuring ability to pay tax. In this Article, Professor Graetz examines the practical problems of implementing and administering a progressive consumption tax as an alternative to the income tax. He concludes that although a consumption tax is feasible, practical implementation difficulties, together with the political unlikelihood of enacting a tax which is both administratively workable and retains the alleged theoretical advantages of a consumption-based tax, argue against its adoption.

The Unresolved Problems Of Reverse Discrimination, Kent Greenawalt

Faculty Scholarship

The current widespread use of remedial affirmative action programs makes the legitimacy of reverse discrimination a pragmatic social concern. That alone, however, would not explain the intense interest generated by Regents of the University of California v. Bakke. The question posed in the case compels our attention because it forces a choice between two values that occupy a high place in the liberal conception of justice and claim substantial support in the equal protection clause. On the one hand, justice requires that groups that have previously suffered gross discrimination be given truly equal opportunity in American life; on the other, …

Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher

Faculty Scholarship

In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal …

The Impact Of The Texas Medical Liability And Insurance Improvement Act On Informed Consent Recovery In Medical Malpractice Litigation, Frank W. Elliott

Faculty Scholarship

This article describes changes to the Texas Medical Liability and Insurance Improvement Act.

Fairness And Natural Justice In English And South African Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Special Report On Endangered Species And New Life Forms: Conversation With A Cockroach, George J. Annas

Faculty Scholarship

On June 15, 1978, the United States Supreme Court ruled that the Endangered Species Act of 1973 required the enjoining of the operation of a virtually completed dam, the Tellico Dam in Tennessee, because of a determination by the Secretary of the Interior that its operation would eradicate the snail darter, an endangered species.

Where Are The Health Lawyers When We Need Them, George J. Annas

Faculty Scholarship

A momentous event in the field of health law occurred in April of 1978: the first national meeting of teachers of health law was held at Boston University. Of sixty individuals invited, almost all of whom teach health law as a full-time profession in various graduate schools, forty-five participated in the two-day workshop. While that response alone may have revealed the answer, the first topic on the agenda was: "Is health law a discipline?"

Judges At The Bedside: The Case Of Joseph Saikewicz, George J. Annas

Faculty Scholarship

In what may prove to be the most controversial medicolegal decision of the year, the Massachusetts Supreme Judicial Court has ruled that, in certain cases, courts are the proper forum in which life-sustaining medical decisions should be made.1 The controversy goes deep. It involves questions of who should make life-prolonging decisions, in what forum, and on what criteria. Until the last few years, these questions arose almost exclusively in the context of Jehovah's Witnesses cases - cases in which life-saving blood transfusions were being refused for religious reasons. But with society's increasing consciousness about the way people die in hospitals, …

Abortion To Aging: Problems Of Definition In The Medical Expense Tax Deduction, Alan L. Feld

Faculty Scholarship

Administration of the medical expense deduction has generated its share of litigation and rulings. The major areas of dispute center on two questions. By far the more important question is how to distinguish deductible medical expenses from other expenses that should be characterized as personal, living, or family expenses. The statutory definition of medical care is a broad one, encompassing amounts paid for "diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body."' ¹⁰ It also includes transportation to obtain medical care." Because normal expenses of a personal nature, …

First Amendment Ancillary Doctrines, David S. Bogen

Faculty Scholarship

No abstract provided.

The Liberty Interest Of Children: Due Process Rights And Their Application, James W. Ellis, Lee E. Teitelbaum

Faculty Scholarship

Few areas pose more difficult problems in the application of due process doctrine than does regulation of parent-child relationships. Determination of the procedural requirements for intervention by the state in the lives of children, at the request or with the agreement of parents, presents novel and troublesome constitutional questions. Special problems arise in the definition of the liberty interests of minors and in determining how much process is due given an infringement of those interests. These problems cannot be resolved by resort to the categorical assumptions of either traditional theory or "children's liberation." Close examination of the interests held by …

Post-Discharge Coercion Of Bankrupts By Private Creditors, Rachel Vorspan

Faculty Scholarship

No abstract provided.

Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin

Faculty Scholarship

This Article focuses on the question whether, or to what extent, a federal court is bound by the explicit and implicit restrictions placed by Congress on a court's power to admit evidence. This is a question that did not arise prior to adoption of the Federal Rules of Evidence because previous prospective rulemaking in the procedural area was in truth a judicial exercise. Although Congress had an implicit veto power over rules of procedure prescribed by the Supreme Court, it never exercised that power. Thus, a lower court's decision to disregard a rule of procedure raised, as a practical matter, …

A Critique Of The Uniform Product Liability Law -- A Rush To Judgment, Aaron Twerski, A. S. Weinstein

Faculty Scholarship

No abstract provided.

Judicial Overload: The Reasons And The Remedies , Maria Marcus

Faculty Scholarship

Animosity towards lawyers, perennial in our social history long before Watergate, parallels a contradictory and equally persistent belief in judges as problem-solvers for a variety of personal, economic, educational and political ills. An increasing number of litigants are bringing to the courts not only the class of disputes that has been the traditional fare of judicial decision-making, but also an array of issues that were formerly resolved in private meetings, at hospitals, in schools, or at home. The causes of this explosion of lawsuits and the possible buffers to an eventual implosion in our judicial system will be discussed below

The Constitution Goes To Harvard, Henry Paul Monaghan

Faculty Scholarship

Doctrinal disorder haunts a generation of Supreme Court decisions construing and applying the strands of the fourteenth amendment. But in a confusion contest between the Court and academic writers on constitutional law, picking a winner would be no simple task. Those of us in the academy, despite our comparatively ample time for reflection, have long resisted discussion of fundamental issues.

Professors Tribe and Michelman, two of our ablest writers, illustrate my point in their provocative recent essays on National League of Cities v. Usery. Neither purports to erect more adequate scaffolding for the decision's federalism foundation. Rather, each attempts …

The Enduring Significance Of Neutral Principles, Kent Greenawalt

Faculty Scholarship

Almost twenty years have passed since Herbert Wechsler delivered his Oliver Wendell Holmes lecture, Toward Neutral Principles of Constitutional Law. Although no one piece fully conveys the richness and rigor of Professor Wechsler's conception of constitutional law and the role of the judiciary, Neutral Principles sets out starkly, eloquently, and courageously some of his fundamental beliefs about constitutional decisionmaking. Shifts in jurisprudential fashion, as well as marked changes in constitutional doctrine and the composition of the Supreme Court, would make this an apt time to review what is almost certainly the most cited and most controversial discussion of constitutional …

Book Reviews, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

More On Regulation: A Reply To Stephen Weiner, Clark C. Havighurst

Faculty Scholarship

In Volume 3, Number 3 of this journal, Professor Havighurst* wrote a brief Comment in which he observed that the function of health care cost-containment regulation is the rationing of health care resources, and argued that the fostering of health care consumers' and providers' free choice in the competitive marketplace is preferable to conventional cost-containment regulation as a mechanism for such rationing. He briefly outlined various reforms, including changes in federal tax treatment of health insurance premiums, aimed at implementing his ap- proach. Subsequently, in a Comment in Volume 4, Number 1, Stephen M.Weiner, then Chairman of the Massachusetts Rate …

Health Maintenance Organizations And The Health Planners, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

The Rights Of The Employee As Patient, Frances H. Miller

Faculty Scholarship

No abstract provided.

Scientific Research With Children: Legal Incapacity And Proxy Consent, Leonard H. Glantz, George J. Annas, Barbara Katz

Faculty Scholarship

Before an investigator can use any person as a subject in biomedical or behavioral research, he must obtain that person's informed consent. This consent must be voluntary, competent, and understanding.¹ There are two questions that arise in regard to experimentation on children. First, is a child legally capable of giving an informed and understanding consent? Second, do parents have the legal capacity to consent to the performance of research on their children? This article will attempt to answer both of these questions.

The Disposition Process Under The Juveniles Justice Standards Project, Stanley Z. Fisher

Faculty Scholarship

The Juvenile Justice Standards Project volumes were publicly discussed for months prior to their publication. Unavoidably, much of the discussion was based upon rumor regarding their contents. In that context, critics charged that the proposed Standards would "destroy the nation's juvenile court system and replace it with a 'junior criminal system' "1 and claimed that the Standards substitute the philosophy of "just deserts" for the traditional rehabilitative goals of juvenile justice.' The news media described the Standards on disposition of delinquents as designed to "fit the penalty to the crime, no matter what the age of the perpetrator. '3 I …

Radiation From Nuclear Power Plants: The Need For Congressional Directives, Michael S. Baram

Faculty Scholarship

Congress often responds to a complex problem by empowering an independent regulatory agency to enforce its legislative will. Acknowledging its own lack of knowledge and time, Congress gives the agency a measure of freedom to modify the legal requirements to fit a variety of circumstances that the legislature could not foresee. Ordinarily Congress restrains this autonomy by prescribing general criteria that the agency must consider and objectives that must be met.' These provisions enable Congress to measure the agency's progress and make necessary changes in the law. In addition, competition from other bureaus forces the agency to act vigorously or …