Digital Commons Network^™

Pregnancy, Drugs, And The Perils Of Prosecution, Wendy K. Mariner, Leonard H. Glantz, George J. Annas

Faculty Scholarship

In the war on drugs an offensive has been launched against pregnant women who use drugs. Over the past four years, prosecuting attorneys have been indicting women who use drugs while pregnant. In South Carolina alone, eighteen women who allegedly took drugs during pregnancy were indicted last summer for criminal neglect of a child or distribution of drugs to a minor.' In the only successful prosecution so far, Jennifer Johnson was convicted in Florida for delivering illegal drugs to a minor via the umbilical cord in the moment after her child was born and before the cord was clamped.^{2 …}

The Fair Housing Amendments Act Of 1988: New Strategies For New Procedures, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

The Right To Forego Life-Sustaining Treatment: Legal Trends And Emerging Issues, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Setting Limits On Autonomy: Saving Money In An Aging Society, Robert L. Schwartz

Faculty Scholarship

In Setting Limits Dr. Daniel Callahan poses a solution: the termination of some kinds of treatment for the very elderly. His solution undercuts autonomy of the individual. This Article describes the values served by autonomy and explains why autonomy is so basic to making health care decisions and why its importance is especially great in the United States. Of course, autonomy is not absolute. This Article will define those classes of cases in which autonomy can be trumped by other interests. The Article will next determine whether the class of cases defined by Dr. Callahan fits within that definition. Finally, …

Feeding The Permanently Unconscious And Terminally Ill Or Dying Is Not Always Compassion, Phebe Saunders Haugen

Faculty Scholarship

A surrogate decision maker may conclude that efforts to mechanically provide liquid nourishment would cause considerable suffering in return for little gain. But such a decision is unquestionably one that can produce great conflict for families and for medical caregivers. Assessment must be made of each patient's situation and of the benefits and burdens that will result if tube feeding is withheld or withdrawn. It may well be, however, that in some cases, the most humane and compassionate treatment for a patient is the withdrawal of all technological interventions, including those that supply nourishment.

Foregoing Life-Sustaining Treatment: What Are The Legal Limits In An Aging Society?, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Human Biology And Criminal Responsibility: Free Will Of Free Ride ?, Deborah W. Denno

Faculty Scholarship

This Comment presents three major arguments concerning biological deficiency defenses, using, respectively, a critique of biosocial science research, a statistical model of biological and sociological data, and an examination of theories and philosophies on causation and behavior. First, this Comment argues that there should be no defense to mitigate criminal responsibility except in the less that one percent of cases eligible for the insanity defense. Second, this Comment argues that social science research has not successfully demonstrated sufficiently strong links between biological factors and criminal behavior to warrant major consideration in determining criminal responsibility. Third, this Comment demonstrates that no …

A Causation Approach To Criminal Omissions, Arthur Leavens

Faculty Scholarship

This Article examines the scope of criminal laws that impose liability for failures to prevent a proscribed harm. Traditionally, courts have only imposed criminal sanctions upon individuals for their failure to act where the individual has a "legal duty" to prevent a specific harm. Professor Leavens rejects this conventional approach as being an artificial and ultimately unfair way to set the limits of omission liability. He asserts that in order for the courts validly to utilize any concept -- including "legal duty"-- to define the scope of omission liability, that concept must fairly reflect the underlying criminal prohibition; namely, that …

One Hundred Fifty Cases Per Year: Some Implications Of The Supreme Court's Limited Resources For Judicial Review Of Agency Action, Peter L. Strauss

Faculty Scholarship

Recent writing about the Supreme Court has stressed the implications of the extraordinary growth in the Court's docket – and, even more, the growth in the overall level of judicial activity in the nation's courts – for its performance of its judicial task. Generally, this writing seeks first to determine whether the Court has been forced to bypass questions it ought normally to hear (for example, square conflicts between two of the federal circuits), editorializes about the increasing bureaucratization of the Court, and passes on to normative questions about what if anything ought to be done to ease the Court's …

Death And The Magic Machine: Informed Consent To The Artificial Heart, George J. Annas

Faculty Scholarship

Jay Katz introduces his remarkable and insightful book, The Silent World of Doctor and Patient, by recounting a portion of Solzhenitsyn's Cancer Ward. He describes an encounter between a patient, Oleg Kostoglotov, and his doctor, Dr. Ludmilla Afanasyevna. The doctor wanted to use experimental hormone treatment, but the patient refused. Katz argues that what made conversation impossible between them was the patient's undisclosed intention of leaving the hospital to treat himself with "a secret medicine, a mandrake root from Issyk Kul." He could not trust the doctor with this information because the doctor would make the decision for the patient …

Trying To Live Forever, George J. Annas

Faculty Scholarship

Since the case of Karen Ann Quinlan, legal actions regarding the dying have become commonplace. Unfortunately, so has legal misinformation, misapplication, fantasy, and inhumanity. We seem to have frightfully underestimated the ability of lawyers to focus on trivia and self protection, and to ignore the basic human rights of dying persons. As the authors of the Hasting Center's Guidelines declare in the introduction:

Hospital legal counsel, lawyers serving other health care institutions, and legal advisors to individual health care professionals have a critical role to play in seeing that medicine is not driven by law, and health care professionals are …

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.

Sociological And Human Developmental Explanations Of Crime: Conflict Or Consensus , Deborah W. Denno

Faculty Scholarship

This paper examines multidisciplinary correlates of delinquency in an attempt to integrate sociological and environmental theories of crime with human developmental and biological explanations of crime. Structural equation models are applied to assess links among biological, psychological, and environmental variables collected prospectively from birth through age 17 on a sample of 800 black children at high risk for learning and behavioral disorders. Results show that for both males and females, aggression and disciplinary problems in school during adolescence are the strongest predictors of repeat offense behavior. Whereas school achievement and family income and stability are also significant predictors of delinquency …

Refusal Of Lifesaving Treatment For Minors, George J. Annas

Faculty Scholarship

I feel very comfortable talking about human rights, civil rights, the role of individual privacy, autonomy, and dignity in making decisions about oneself. Yesterday's topics concerning adults and privacy, however, were much easier than today's, which deal with children. It's not difficult to argue for the right of competent adults, whether it be in Texas' or California,2 to make their own decisions. As much as we may or may not agree with their decisions, at least arguing that -competent individuals like Dax Cowart and Elizabeth Bouvia have a right to make their own decisions makes a lot of sense; the …

Competence To Refuse Medical Treatment: Autonomy Vs. Paternalism, George J. Annas, Joan E. Densberger

Faculty Scholarship

The right to refuse medical treatment is universally recognized as a fundamental principle of liberty. Nonetheless, the right is often infringed upon by paternalistic physicians who either use too narrow a definition of competence, or misunderstand or ignore the patient's liberty interest in freedom from coerced medical interventions. A careful consideration of competence in the medical care setting leads to a conclusion that it can best be assessed by determining the patient's ability to understand the information necessary to provide informed consent to treatment. If a patient has this capacity, both his consent and refusal must be honored. Placing competence …

How Empty Is The Idea Of Equality, Kent Greenawalt

Faculty Scholarship

The nature of equality and the relationship between equality and justice have long been puzzling to social and legal philosophers. One manifestation of these problems of understanding is uncertainty among lawyers and judges about the significance of legal norms formulated in the language of equality, most notably the equal protection clause of the Constitution. In an elaborately reasoned, imaginative, and richly referenced recent article, Peter Westen has urged the arresting conclusion that the idea of equality is empty, empty in the sense that any normative conclusion derived from the idea could be reached more directly by reliance on normative judgments …

Nearshore And Shelf-Edge Oculina Coral Reefs: The Effects Of Upwelling On Coral Growth And On The Associated Faunal Communities., John K. Reed

Faculty Scholarship

Colonies of Oculina varicosa were collected from nearshore, mid-shelf, and shelf-edge reefs off central eastern Florida. The shelf-edge reefs are inundated episodically throughout the year by upwelling of cool, nutrient rich water. On the inner shelf, cyclic seasonal factors predominate and upwelling intrudes only for a few weeks during the summer. Growth rates of the coral are significantly greater on the shelf-edge reefs than nearshore, even though at the shelf-edge temperatures are cooler and the coral lacks zooxanthellae. Species diversities of assemblages of decapods and mollusks associated with the coral are greater at the shelf-edge reef than at the mid- …

Polygyny And Polydomy In Three North American Species Of The Ant Genus Leptothorax Mayr (Hymenoptera: Formicidae), Thomas M. Alloway, Robin Stuart, Cynthia Thomas, Alfred Buschinger, Mary Talbot

Faculty Scholarship

This paper deals with certain behavioral and ecological factors which may be relevant to the evolution and maintenance of social parasitism in ants. We will argue that some of the same factors which might predispose one species to evolve into a social parasite might make resistance to parasitism difficult for a closely related species.

Community Composition, Structure, Areal And Trophic Relationships Of Decapods Associated With Shallow- And Deep-Water Oculina Varicosa Coral Reefs: Studies On Decapod Crustacea From The Indian River Region Of Florida, Xxiv., John K. Reed, R. H. Gore, L. E. Scotto, Kim A. Wilson

Faculty Scholarship

Decapod crustaceans associated with living colonies of the scleractinian coral Oculina varicosa were sampled quantitatively for I year at 4 reef stations encompassing depths of 6, 27, 42, and 80 m off the central eastern Florida coast. A total of 42 samples of individual colonies yielded over 2,300 decapods in 15 families, 35 genera and 50 species, and was species-rich in xanthid and majid crabs (10, 6 spp., respectively), and alpheid shrimp (9 spp.). The community was predominantly anomuran with two species of hermit crabs (Pagurus carolinensis, P. piercei), a porcellanid crab (Megalobrachium soriatum) and a galatheid crab (Galathea rostrata) …

Conjugal Violence: The Law Of Force And The Force Of Law , Maria Marcus

Faculty Scholarship

The Article concludes that neither the impartial mission of the rule of law nor the neatly tooled goal of individual justice has been served by the governmental response to conjugal violence, and suggests the elements from which a valid approach may be constructed.

Disqualifications Of Decisional Officials In Rulemaking, Peter L. Strauss

Faculty Scholarship

What constraints on impartiality govern agency officials responsible for decisions in proceedings other than on-the-record adjudications? The past few years have witnessed the emergence of a striking body of professional debate, statute, and case law concerning ethics in government and the control of "special interest" influence on governmental decisions. Higher standards for conflict of interest, expanded constraints on ex parte communications, and enlarged concems about separation of functions within the agencies are parts of this development. Another strand, tangled with the others yet doctrinally distinct, concerns the disqualification of responsible government officials for their prior contacts with or expressions of …

The Scope Of Judicial Review In French Administrative Law, George A. Bermann

Faculty Scholarship

The arguments that may be raised in support of a claim of abuse of discretion must go to the legality, not just the wisdom or advisability, of administrative action. Though the judge is responsible for seeing to it that the government acts in conformity with law, he may not put himself in its place or interfere in its functioning. His job is not to determine whether in a given case a certain administrative official ought to have acted and, if so, in one particular way. He has neither the means nor the materials for judgments of this sort, nor does …

First Amendment Protection For Commercial Advertising: The New Constitutional Doctrine, Thomas W. Merrill

Faculty Scholarship

Governmental regulation of commercial advertising has become a major focus of challenges to established first amendment doctrine. An increasing number of suits have raised constitutional objections to regulations of false or deceptive advertising, regulations of offensive advertising, prohibitions of commercial advertising in certain forums, prohibitions of price advertising for particular products or services, and prohibitions of all advertising for particular products or services.' Until recently, the majority of courts upheld such regulations under the Supreme Court's ruling in Valentine v. Chrestensen that "purely commercial advertising" is unprotected by the first amendment.

In the last two years the Court has subjected …

Debate, The Right To Treatment: Encounter And Synthesis, Aaron Twerski

Faculty Scholarship

No abstract provided.