Digital Commons Network^™

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Faculty Scholarship

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

With Liberty And Justice For All: An Essay On Agent Orange And Choice Of Law, Aaron Twerski

Faculty Scholarship

No abstract provided.

Economic Perspectives On Trade In Professional Services, Jagdish N. Bhagwati

Faculty Scholarship

This paper will bring an economist's perspective to bear on three questions raised at this conference by some of the other important contributions:

1. How are services different from goods;
2. What implications do these differences have for the rules we seek to negotiate to free trade in services; and
3. How can we induce the key developing countries, such as Brazil, Egypt and India, which have generally opposed liberalization of trade in services, to support it?

Answers to these questions will naturally bear critically on the narrower question of international trade in professional, and especially legal, services, since recommendations and decisions on …

Victim, Offender, And Situational Characteristics Of Violent Crime, Deborah W. Denno

Faculty Scholarship

The examination of offenses rather than offenders in past research often overlooked the importance of offender characteristics and background. Indeed, a growing body of research suggests that the biological or psychological characteristics of offenders may strongly influence the outcome of particular encounters or future offense behavior. For instance, offenders with poor verbal ability or low school achievement scores may be more prone to repeat confrontational violence, irrespective of the characteristics of the victim or the situation of the offense. Thus, it is important to distinguish between those offenders with short or repeat offense histories, and those offenses which do or …

Conflicts-Of-Interest Disqualification In Medical Malpractice Litigation, George J. Annas

Faculty Scholarship

Less than two decades ago it was thought sufficient to say, "When a practitioner is in doubt on an ethical question, the best answer is usually No." A more recent commentator has suggested, however, that "[s]uch platitudes have become increasingly inadequate to guide the attorney facing conflicts of interests in the private practice of law." Because of the general vagueness of the American Bar Association's Model Code of Professional Responsibility, and of state codes based on it, courts have begun to fashion a vast "common law" of conflicts of interest A particularly controversial entry to this body of common law …

Prospective Payment For Hospital Services: Social Responsibility And The Limits Of Legal Standards, Wendy K. Mariner

Faculty Scholarship

The author advances the argument that Diagnosis Related Groups (DRGs) should be recognized as a health care resource allocation technique. In addition, the author offers four societal goals as a gauge for measurement of DRG performance and reviews the incentives and disincentives connected with utilization of DRGs in health care allocation. Finally, the author examines the dichotomous attitudes toward health care distribution which are present in society today. The author's primary goal is to illustrate the potential inequities which could result from allowing DRGs to force allocation of health resources without any reference to social responsibility issues.

The Constitutional Vulnerability Of American Local Government: The Politics Of City Status In American Law, Joan C. Williams

Faculty Scholarship

No abstract provided.

Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott

Faculty Scholarship

Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.

Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization …

The Role Of The President And Omb In Informal Rulemaking, Peter L. Strauss, Cass R. Sunstein

Faculty Scholarship

Regulatory reform has been a subject of frequent discussion in the last decade, especially in the context of presidential efforts to assert control over the rulemaking process. Presidents Nixon, Ford, Carter, and Reagan have all attempted to increase presidential authority over regulation. In particular, President Reagan has issued two executive orders that give the Office of Management and Budget (OMB) considerable power over the rulemaking activities of executive agencies.

In this article, we set forth our views on the role of presidential supervision in the regulatory process, with particular attention to the questions raised by the recent executive orders.

Rising Above Principle, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Error And Rationality In Individual Decisionmaking: An Essay On The Relationship Between Cognitive Illusion And The Management Of Choice, Robert E. Scott

Faculty Scholarship

How do individuals make choices? In recent years, economists, psychologists and legal academics have searched for answers to various aspects of this question. One topic of recent interest, for example, concerns a lingering problem in information theory: Does consumer inability to process "too much" information cause market failure? The normative implications of this question raise significant policy issues. If consumers' cognitive circuits can become overloaded, then information disclosure is less appealing than direct regulation as a solution to problems of market failure.

Religiously Based Premises And Laws Restrictive Of Liberty, Kent Greenawalt

Faculty Scholarship

My subject concerns the connection between religious premises and political decisions that restrict people's liberty. This topic has implications for the constitutionality of laws adopted on religious grounds, and I sketch the most important of these implications at the conclusion of this article. My main focus, however, is the proper attitudes of citizens and legislators in our liberal democracy, and, in particular, whether they should rest their judgments on religious premises. In addressing this issue, I concentrate on the responsibilities of citizens and on laws restricting consenting sexual acts and abortions. My main burden is to illustrate two radically different …

Banning The Bomb: Law And Its Limits, Lori Fisler Damrosch

Faculty Scholarship

We can all agree with the contributors to this volume that nuclear weapons present the threat of unimaginable devastation that could bring an end to civilization and even to life on this planet. The grim calculations and stark images come back again and again, but they cannot be repeated too often: over 50,000 weapons in the United States and Soviet arsenals, each with a destructive force dwarfing the explosions at Hiroshima and Nagasaki; radiation effects producing indescribable suffering and death; environmental damage that defies quantification or prediction; the specter of nuclear winter rendering the earth uninhabitable. No rational being can …

The Revival Of Fact Pleading Under The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Battered Woman Syndrome And Self-Defense: A Legal And Empirical Dissent, David L. Faigman

Faculty Scholarship

No abstract provided.

An Overview Of Health Law Research And An Annotated Bibliography, Richard A. Danner, Claire M. Germain

Faculty Scholarship

No abstract provided.

Sensory Function And Gating Of Histaminergic Neuron C2 In Aplysia, Hillel J. Chiel

Faculty Scholarship

This paper explores the possible sensory function of the identified histaminergic neuron C2. Mechanical stimulation of a narrow region around the mouth of the animal (perioral zone) elicits brief depolarizing potentials in C2. Extracellular recordings from the peripheral axons of C2 indicate that the depolarizing potentials are due to action potentials that are conveyed from the periphery but do not invade the cell body, since they fail at a region with a low safety factor within the cerebral ganglion. These blocked axonal spikes (A- spikes) function as if they were excitatory synaptic inputs to C2, since the synaptic output of …

An Identified Histaminergic Neuron Modulates Feeding Motor Circuitry In Aplysia, Hillel J. Chiel

Faculty Scholarship

An identified histaminergic neuron, C2, in the marine mollusk Aplysia is a complex mechanoafferent which appears to contribute to the maintenance of food arousal by means of its synaptic connections to the metacerebral cell (MCC). Because C2 also has extensive synaptic outputs to neurons other than the MCC, we studied its possible motor functions. We identified several synaptic followers of C2 and found that some were excitatory motor neurons for extrinsic muscles of the buccal mass, while others were modulatory motor neurons that inhibited contractions. In addition, we found that these neurons and other synaptic followers of C2 received powerful …

Into The Hands Of Strangers, George J. Annas

Faculty Scholarship

Movie critic David Denby has asserted that American theatergoers are a "professional avant-garde audience" who "cannot be shocked by what others would find unintelligible... [and] have lost the capacity for outrage."' This analysis of American theater can be aptly applied to clinical medical education.

I assume almost every nonmedical professional reading "Death at a New York Hospital" will be horrified and outraged at the "treatment" Ms. Hewitt was subjected to in the hospital. Many physicians will too; but it is likely that more will be as understanding of the actions of the intern and residents as was Dr. A, the …

Regulating The Sale Of Human Organs, Susan J. Hankin

Faculty Scholarship

No abstract provided.

A New Employment Policy For The 1980’S: Learning From The Victories And Defeats Of Twenty Years Of Title Vii, Jerome M. Culp

Faculty Scholarship

No abstract provided.

The Dog And His Shadow: A Response To Overcast And Evans, George J. Annas

Faculty Scholarship

Aesop's Fable, "The Dog and the Shadow," begins with a dog walking over a bridge with a piece of meat in his mouth. Looking down into the stream, he sees his shadow. Thinking it is a bigger dog, with a piece of meat twice the size of his own, the greedy dog decides to get it. Snarling, he opens his mouth to attack. At that moment the meat falls from his mouth, into the stream. The dog realizes his mistake, and sadly says to himself, "Grasp at the shadow and lose the substance."

Drs. Overcast and Evans have not yet …

May The Government Exclude "Nontraditional" Charities From A Federally-Sponsored Charity Drive?, Joel Gora

Faculty Scholarship

No abstract provided.

A Truce In The Takeover Wars?, Gary S. Lawson

Faculty Scholarship

To a casual observer, hostile corporate takeovers may seem as pointless and destructive a form of modern warfare as the Iran/Iraq conflict. "Raiders" strike with bear hugs, junk bonds, and two-tier tender offers. Incumbent managers respond with poison pills, greenmail payments, shark repellents, and golden parachutes. Congress is wearying of the strife, and may soon impose a cease-fire on the combatants -but to whose benefit?

A Moderate And Restrained Federal Product Liability Bill: Targeting The Crisis Areas For Resolution, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Regulating Heart And Liver Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the United States. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal in nature, and thus neither are the solutions. Heart and liver transplants are extreme and expensive medical interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant …

Informed Consent To Participation In Medical Research Employing Elderly Human Subjects, Robert L. Schwartz

Faculty Scholarship

The primary question facing researchers who intend to employ elderly human subjects is whether their subjects' advanced age requires that the protection of their autonomy be accomplished in some manner that is different from that employed to protect other subjects. Answering this question will require an analysis of whether elderly subjects have a greater or lesser interest in autonomy than do others who might be subjects in human research, and whether it is more or less important to protect them from potential research abuse. This article will suggest that the elderly may possess several attributes that require that they be …

The Insanity Defense In Fact And Fiction: A Review Essay Of Norval Morris's Madness And The Criminal Law, Susan Herman

Faculty Scholarship

No abstract provided.

Mentally Retarded Criminal Defendants, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

This Article attempts to provide a preliminary overview of the issues in the Mental Health Standards as they relate to defendants with mental retardation. Part I reviews the history of the treatment of retarded defendants in the criminal justice system. Part II describes the characteristics of people with mental retardation and the consequences of those characteristics. Part III then discusses the extent to which mental retardation should be exculpatory of criminal responsibility. Part IV analyzes the critical importance of competence issues to mentally retarded defendants. Part V elaborates upon dispositional issues including civil commitment and sentencing. Parts VI and VII …

Damned If You Do, Damned If You Don't: Hospitals' Liability For Physicians' Malpractice, Diane M. Janulis, Alan D. Hornstein

Faculty Scholarship

This Article explores some of the problems hospitals face in avoiding liability for the negligence of their independent contractors.  After a critical analysis of the theories underlying imposition of liability, we discuss the sometimes conflicting public policy considerations respecting the mandates given to the modern hospital as these mandates affect hospitals’ liability.