Digital Commons Network^™

Marriage: The Status Of Contract, An Essay On Weitzman's The Marriage Contract, Marsha Garrison

Faculty Scholarship

No abstract provided.

Statistical Significance And The Burden Of Persuasion, David H. Kaye

Faculty Scholarship

In most endeavors concerned with the acquisition of knowledge, quantitative information is welcomed. In law, however, it appears sometimes that scientific or numerical evidence makes cases harder, not easier. Nevertheless, there are many cases and administrative proceedings, in such areas as environmental law, food and drug regulation, and civil rights, in which statistical data obtained by observation or experiment are readily accepted as assisting in the proper resolution of disputed issues of fact. When courts or administrators confront scientific and statistical evidence in these proceedings, they are not always certain of how to weigh the evidence or whether they should …

The Minnesota Commitment Act Of 1982 Summary And Analysis, Eric S. Janus, Richard M. Wolfson

Faculty Scholarship

Minnesota law governing commitments has been substantially

revised and recodified in the Minnesota Commitment Act of 1982.

The prior law is repealed and the new law is substituted for it effective

August 1, 1982.

This article has three purposes. First, the significant changes in

the civil commitment law are identified and their implications explored.

Second, where appropriate, the legal background underlying

the changes is explored in order to place the changes in context.

Third, the article identifies ambiguities and inconsistencies in the

Act, posits resolutions, and suggests areas for legislative attention.

The Right To Refuse Treatment: A Model Act, George J. Annas

Faculty Scholarship

Although the right to refuse medical treatment is universally recognized as a fundamental principle of liberty, this right is not always honored. A refusal can be thwarted either because a patient is unable to competently communicate or because providers insist on continuing treatment. To help enhance the patient's right to refuse treatment, many states have enacted so-called "living will" or "natural death" statutes. We believe the time has come to move beyond these current legislative models, and we therefore propose a Model Act that clearly enunciates an individual's right to refuse treatment, does not limit its exercise to the terminally …

No Light At The End Of The Pipeline: Confusion Surrounds Legislative Courts, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Representing Institutionalized Mentally Retarded Persons, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

The following article explores the need for increased legal advocacy for mentally retarded persons. Contrasting the services available to the mentally ill with the limited resources for the mentally retarded, the authors highlight the unique problems of this underrepresented population, and examine alternative forums for advocacy. In a practical, straightforward analysis, the article identifies barriers to effective representation, including the fundamental problem of lawyers' and advocates' reactions to institutionalized retarded persons' appearance and behavior, and the effect of these reactions on advocacy efforts. The article is followed by a client interview form and guide that focus on the special problems …

Mobile Homes?--Public And Private Controls, Robert L. Schwartz

Faculty Scholarship

The mobile home of today is a far different creature than that from which it was bred. Changes in size, appearance, safety, convenience, and desirability as a place to live have caused the modem mobile home to bear little resemblance to its ancestors. Functioning as a permanently emplaced dwelling, the mobile home has come to be recognized as undeserving of the label "mobile." Other than by place of manufacture, mobile homes have become increasingly indistinguishable from conventional single family dwellings, raising the question of whether mobile homes can reasonably be restricted from areas reserved for single family dwellings. Land controls, …

Legality, Bureaucracy, And Class In The Welfare System, William H. Simon

Faculty Scholarship

When lawyers confronted the welfare system in the 1960's, they charged it with oppressive moralism, personal manipulation, and invasion of privacy. They focused attention on the "man-in-the-house" rules that disqualified families on the basis of the mother's sexual conduct and the "midnight raids" in which welfare workers forced their way into recipients' homes searching for evidence of cohabitation.

When I represented welfare recipients from 1979 to 1981, the workers showed little interest in policing their morals or intruding on their private lives. The "man-in-the-house" rule and the practice of unannounced or nighttime visits had been repudiated. Yet the pathologies emphasized …

In Vitro Fertilization And Embryo Transfer: Medicolegal Aspects Of A New Technique To Create A Family, George J. Annas, Sherman Elias

Faculty Scholarship

IVF and ET conjure up a variety of images, from "test tube babies" to Steven Spielberg's extraterrestrial. Indeed, it is sometimes difficult to separate science fiction from scientific reality. Nonetheless, the extracorporeal fertilization of a human egg followed by transfer to a human uterus and birth of a child, has been repeated in a number of countries around the world. In vitro fertilization (IVF) and embryo transfer (ET) are now reality.' Most of us applauded this new technology along with the parents of the resulting children. These infertile couples were able, with the help of IVF, to have their own …

Fairness In Rate Cuts In The Individual Income Tax, Alan L. Feld

Faculty Scholarship

The Economic Recovery Tax Act of 1981 (the 1981 Act) made significant changes in federal income, estate, and gift taxation, touching virtually every taxpayer.¹ The centerpiece of the 1981 Act consisted of rate reductions in the individual income tax.² These reductions, said to average 23%, served a number of different but related objectives. First, those in favor of the tax cuts posited that all taxpayers would benefit from equitable, across-the-board reductions in an excessive and growing tax burden.³ Related to this objective was an anticipated reduction in the size of the federal government, because less tax money …

Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen

Faculty Scholarship

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a "transformation" in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an "alliance," in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in …

Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss

Faculty Scholarship

Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.

Foreword: Symposium On Hospital Law, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

Private Credentialing Of Health Care Personnel: An Antitrust Perspective, Part 1, Clark C. Havighurst, Nancy M. P. King

Faculty Scholarship

This Article explores the antitrust and other implications of private credentialing and accrediting programs in the health care industry. Although such programs are usually sponsored by powerful competitor groups, they serve the procompetitive purpose of providing useful information and authoritative advice to independent decision makers. Part One examines the risk that credentialing will sometimes be unfair to competitors and deceive consumers. Its survey of common-law, antitrust, and regulatory interventions to correct such unfairness and deception seeks to determine the degree of oversight to which credentialing and similar activities have been and should be subjected. In recommending that judicial or regulatory …

Fraudulent Concealment In Federal Court: Toward A More Disparate Standard?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Regulatory Reform: Assessing The California Plan, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Legal Accountability And The Ncaa, John C. Weistart

Faculty Scholarship

No abstract provided.

Private Credentialing Of Health Care Personnel: An Antitrust Perspective, Part 2, Clark C. Havighurst, Nancy M. P. King

Faculty Scholarship

Having argued in Part One against extensive judicial or regulatory interference with private personnel credentialing in the health care field, this Article now shifts its focus to emphasize the anticompetitive hazards inherent in credentialing as practiced by professional interests. Competitor-sponsored credentialing is shown to be a vital part of a larger cartel strategy to curb competition by standardizing personnel and services and controlling the flow of information to health care consumers. Instead of altering the conclusions reached in Part One, however, Part Two sets forth a new and hitherto unexplored agenda for antitrust enforcement, one that the authors believe will …

The Exercise Of Executive Discretion: A Study Of A Regional Office Of The Department Of Labor, Michael C. Harper

Faculty Scholarship

Writing for a recent symposium on empirical research in administrative law, Professor Paul Verkuil noted that such research "casts light on one of the dark corners of the law. The vast majority of administrative decisions are of the informal variety, meaning they take place outside the reach of generic administrative procedure acts and frequently outside the courts themselves."' We are only beginning to appreciate how vast is this dark corner and how varied the possible modes of illumination.

This essay casts some additional light into the corner by reporting on a study of the exercise of executive discretion by a …

Seizing The Middle Ground Between Rules And Standards In Design Defect Litigation: Advancing Directed Verdict Practice In The Law Of Tort, Aaron Twerski

Faculty Scholarship

No abstract provided.

Book Review (Reviewing Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air (1981)), John C. Dernbach, Thomas Y. Au

Faculty Scholarship

No abstract provided.

Life And Death Decisions In The Nursery: Standards And Criteria For Withholding Lifesaving Treatment From Infants, Steven R. Smith

Faculty Scholarship

That the conduct of human affairs does not always conform to the requirements of the law is a surprise to no one. But in few areas of critical life and death decisions is there such a disparity between commonly recognized principles of law and developing medical practice as exists in the area of withholding lifesaving medical care from infants, notably defective infants. The law is said to restrict physicians and parents from withholding lifesaving treatment from infants for the purpose of causing their deaths. Yet it is reported that it is not uncommon for lifesaving treatment to be denied severely …

Commentary: Constitutional Law, Joel Gora

Faculty Scholarship

No abstract provided.

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Faculty Scholarship

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

Mandatory Pku Screening: The Other Side Of The Looking Glass, George J. Annas

Faculty Scholarship

The challenge that PKU screening programs face is to be effective without sacrificing individual liberty. Most states have assumed that this is impossible, and have enacted mandatory PKU screening tests. It now appears that in fact voluntary screening for PKU can be effective. Accordingly, it seems appropriate to reexamine existing mandatory screening statutes to determine if we can replace government coercion with voluntary informed consent. Focus should be placed on the proper role of the government in screening, and on improving the consent process, and not on those few couples who withhold consent.

The Emerging Stowaway: Patients' Rights In The 1980s, George J. Annas

Faculty Scholarship

At one point in Edgar Allan Poe's Narrative of Arthur Gordon Pyr of Nantucket, Pym, who has stowed away in the hold of a whaling vessel, believes he has been abandoned and that the hold will be his tomb. He expressed sensations of "extreme horror and dismay," and "the most gloomy imaginings, in which the dreadful deaths of thirst, famine, suffocation, and premature interment, crowded in as the prominent disasters to be encountered."

Managing Flood Risk: Technical Uncertainty In The National Flood Insurance Program, Michael S. Baram, J. Raymond Miyares

Faculty Scholarship

Congress established the National Flood Insurance Program ("NFIP")² to prevent flood damage and to provide relief after such damage has occurred. The NFIP is administered by the Federal Emergency Management Agency ("FEMA" or "Agency") ³ and has become a major influence on state and local land use regulation and a critical factor in private land use decisions across the nation.

This innovative program seeks to control the risk of flood damage by inducing local government to take land use control and other "police power" measures. It offers, as the inducement for such measures, the availability of federal flood insurance …

The Competency Of Children And Adolescents To Make Informed Treatment Decisions, Lois A. Weithorn, Susan B. Campbell

Faculty Scholarship

No abstract provided.

The Ohio Sunshine Act: An Appraisal, Frederic White

Faculty Scholarship

The Ohio open meetings or "Sunshine" law has existed in its present form since November 28, 1975 [hereinafter the "Sunshine Law" or "The Act"]. So-called open meeting legislation is neither new or unique to Ohio. Indeed, every state has enacted one or more open meetings laws. This article will examine the Sunshine Law to determine whether it has served its purpose, that is, making the processes of government more accessible to the citizens of the state of Ohio, and suggest some changes to increase the effectiveness of the legislation.

‘The State’ And Other Basic Terms In Public Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.