Digital Commons Network^™

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 …

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.

Confessions Of A Horizontalist: A Dialogue On The First Amendment, Larry Yackle

Faculty Scholarship

It is hardly surprising that the Supreme Court has never developed a satisfying theory of the first amendment. Free speech and press problems are many and varied, demanding the most delicate balance of interests in order to preserve a system of freedom of expression and at the same time afford proper respect for competing governmental objectives. Doctrine adapted to one medium of expression may not sit well when applied to others. With the passage of time, changes in technology, economic conditions, and the very nature of expression tend to outstrip the Court's ability to keep pace with doctrinal innovations. There …

Governmental Regulation Of The Press: A Study Of Israel's Press Ordinance - Part Ii, Pnina Lahav

Faculty Scholarship

In the beginning, use of the Press Ordinance (hereafter Pr. Ord.) was limited, but as British political control deteriorated it became more extensive and even ruthless. In 1937, the Peel Report complained that the Pr. Ord. was not tough enough and recommended stricter measures.³ At about the same time, the Mandatory Government itself reached the conclusion that the Pr. Ord. was insufficient and issued a series of Defence (Emergency) Regulations which suspended the entire range of civil liberties-including freedom of expression. These Defence (Emergency) Regulations which related to the press replaced in part and fortified in part the Pr. …

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.

Securities Commentary, Roberta S. Karmel, John P. Ketels

Faculty Scholarship

No abstract provided.

Rebutting Presumptions: Order Out Of Chaos, Neil S. Hecht, William M. Pinzler

Faculty Scholarship

No abstract provided.

Representation Of Women Who Defend Themselves In Response To Physical Or Sexual Assault Arguedas, Elizabeth M. Schneider, Susan B. Jordan, Cristina C. Arguedas

Faculty Scholarship

No abstract provided.

Governmental Regulation Of The Press: A Study Of Israel's Press Ordinance - Part I, Pnina Lahav

Faculty Scholarship

This article is part of a broader effort to analyse the relationship between the press and the legal system in Israel. Being only a segment of a larger project, it is devoted in its entirely to one component of Israel's press law: the Press Ordinance of 1933 (hereafter Pr. Ord.). Although antiquated and considered by certain circles as merely a "dead letter", the Pr. Ord. still forms the backbone of Israel's press law, since it regulates so many aspects of the press. Beyond its relevance as positive law, the Pr. Ord. is of interest for a number of reasons. Having …

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.

Recent Decisions Of The Supreme Court In Labor Law, David S. Bogen

Faculty Scholarship

No abstract provided.

The Court Of Appeals Of Maryland: Roles, Work And Performance - Part Ii: Craftsmanship And Decision-Making, William L. Reynolds

Faculty Scholarship

No abstract provided.

The Non-Precedential Precedent - Limited Publication And No-Citation Rules In The United States Courts Of Appeals, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Questioning Judicial Candidates: What Can Merit Selectors Ask?, Peter G. Fish

Faculty Scholarship

No abstract provided.

An Historical Perspective On The Attorney-Client Privilege, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Relief From Federal Judgments: A Morass Unrelieved By A Rule, Mary Kay Kane

Faculty Scholarship

No abstract provided.

The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr.

Faculty Scholarship

The existence of disparities in the sentences imposed on equally culpable offenders has long been a subject of jurisprudential concern. The author provides a critique of recent efforts to objectify the sentencing process that rely on a matrix table prescribing guideline sentence lengths on the basis of offense severity and predictions of recidivism. With particular emphasis on the Sentencing Commission authorized by pending federal legislation, he urges the need for political accountability in the body that inevitably makes value judgments in the preparation and administration of such a guideline system. Finally, the author discusses the normative issues that surround the …

Guiding Capital Sentencing Discretion Beyond The "Boiler Plate": Mental Disorder As A Mitigating Factor, James S. Liebman, Michael J. Shepard

Faculty Scholarship

In five decisions handed down on July 2, 1976, the United States Supreme Court held that the death penalty may be imposed for the crime of murder, so long as there are clear standards to guide the sentencing authority and the sanction is not imposed mandatorily. The authors examine the eighth amendment doctrinal framework used by the Court in the July 2 Cases, with particular reference to the requirement that individualized mitigating information be considered in the sentencing decision. Illustrating that requirement, they contend that mental disorder should be considered as a possibly mitigating factor and then suggest a standard …

Evolution Of The Concept Of The Rights Of The Child In The Western World, D. Kelly Weisberg

Faculty Scholarship

The General Assembly of the United Nations has proclaimed 1979 to be the International Year of the Child. It is also the twentieth anniversary of the United Nations' Declaration of the Rights of the Child. The concept of the rights of the child is of relatively recent origin. This modern notion that a child is entitled to special protection, opportunities and facilities emanates from two historical sources. First, it reflects the culmination of the evolution of the concept of childhood. Second, it springs from the development in the nineteenth and twentieth centuries of the juristic concept of the child as …

Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen F. Ross

Faculty Scholarship

In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the …

A Preliminary Report On The Bakke Case, William W. Van Alstyne

Faculty Scholarship

This comment breaks down the variety of opinions in the Bakke case and discusses the immediate implications the decision may have on the academic community.

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 …

The Quest For Educational Opportunity: Access To Legal And Medical Education In New Mexico, Leo M. Romero

Faculty Scholarship

ACCESS of minority group members to higher education is one of the burning social and legal issues of our time. The issue centers around two problems: first, how can the number of minority students in higher education be increased, and, second, can it be done in a way that does not abuse the constitution? As institutions of higher learning, both medical and law schools have been the focus of this issue, primarily due to the intense competition among applicants for the limited number of positions available. l In addition, medical schools and law schools have been the recent targets of …

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

Faculty Scholarship

No abstract provided.

Requisites Of A Valid Judgment, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Supreme Court As A Legislature, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

To Herbert Wechsler With Grateful Appreciation, Michael I. Sovern

Faculty Scholarship

Though the invitation to join this symposium came to me in my official capacity, I prefer to write in personal terms. I make that choice for two reasons. First, I cannot improve on the Faculty's own affectionate resolution of appreciation, and so I am happy to embrace it as the School's official position. (I alone on the Faculty could not vote for it: only a tie gives me the franchise and, try as I might, I could not suborn any contrary votes.) Second, my feelings for Herb Wechsler owe far more to my days as his student and my years …

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 …