Digital Commons Network^™

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 …

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 …

A New Service On The Texas Legal Horizon: Texas Supreme Court Index, James Hambleton, Jim Paulsen

Faculty Scholarship

Since the late 1950's the Texas Supreme Court Journal has been a mainstay of Texas lawyers, offering speedy copies of all supreme court opinions as well as writ dispositions. Though the Texas Supreme Court Journal is invaluable, it does have one major deficiency. Marian Boner's Reference Guide to Texas Law and Legal History puts the problem succinctly: "There is no cumulation, and the cases are not indexed."

A new publication, Texas Supreme Court Index+, is now making a creditable bid to fill that gap. A weekly service originating in Houston, the Index+ contains up-to-date data on the …

Whatever Happened To 1845 - The Missing Decisions Of The Texas Supreme Court, Jim Paulsen, James Hambleton

Faculty Scholarship

Have you ever noticed a gap in the publication of Texas Supreme Court decisions? Both the Harvard "Blue Book" and the University of Texas "Green Book" inform readers that opinions of the court from 1840 to 1844 (the Republic period) can be found in Dallam's Decisions, while decisions from 1846 on (statehood) are available in Texas Reports or the Southwestern Reporter. That's all very clear, but whatever happened to 1845? This article will supply half an answer to this question; perhaps some reader can provide the other half.

Three questions arise. The first, and simplest: Are there any …

Semiflexible Self-Avoiding Polymers, Rolfe G. Petschek

Faculty Scholarship

A simple two dimensional model for semiflexible polymers is discussed. A rigorous lower bound is obtained for the free energy and a rigorous upper bound is obtained for the energy. These bounds evaluated for infinite systems are shown to be in serious conflict with results obtained by a Monte Carlo simulation of a finite system.

Defining Filartiga: Characterizing International Torture Claims In United States Courts, James Paul George

Faculty Scholarship

Since the Nuremburg trials and the attendant worldwide reaction to Nazi attrocities, the world has taken an increasing interest in preventing government torture. Whenever legal fictions such as national borders and other sovereignty concepts have acted as barriers to torture prevention, the world has responded, slowly and incrementally, with new legal fictions to overcome those barriers. A recent case in a United States federal court, Filartiga v. Pena-Irala, is a significant new increment toward the prevention of torture and more generally the international protection of human rights. Filartiga holds that torture, long prohibited by virtually all nations' laws and …

Low Energy Antiproton-Nucleus Elastic Scattering, R. Debbe, William J. Fickinger, R. Marino, D. K. Robinson

Faculty Scholarship

We have studied antiproton elastic scattering on Al, Cu, and Pb for two incident momenta: 514 and 633 MeV/c. The angular region covered extends from the forward Coulomb region to approximately 30 deg. The differential cross sections were analyzed using a nonrelativistic optical potential of the Woods-Saxon form, with the imaginary shape taken from electron scattering data. We obtained fits for the strengths of the real and imaginary parts of the potential, (V0, W0), of (51, 116) MeV for Al, (12, 71) MeV for Cu, and (12, 278) MeV for Pb.

Nonlinear Effects In Supercritical Quenches Of A Binary Fluid, Rolfe G. Petschek

Faculty Scholarship

We report on a study of the evolution of the structure factor S(k,t) of a binary fluid mixture near the consolute critical point after rapid quenches which kept the system in the stable, one-phase region. S(k,t) always relaxed more slowly than expected on the basis of linear response and, under certain conditions, overshot the equilibrium value. A nonlinear theory without adjustable parameters, based on the Langevin equations for order-parameter fluctuations near the critical point, agreed with the data.

The Right To Know And The Duty To Disclose Hazard Information, Michael S. Baram

Faculty Scholarship

In late 1983, the Occupational Safety and Health Administration (OSHA) promulgated its final rule on "hazard communication." This rule establishes for many workers the right to know certain health hazard information held by their employers. Concurrently, the rule imposes on these employers the duty to disclose such privately held information. ^I

The OSHA rule is limited and late, and joins a crowded field. It follows in the wake of several decades of legal developments which have established various rights to know and duties to disclose. Since the latter part of the nineteenth century, state common law for personal injuries has …

Psychosocial, Legal, And Ethical Dimensions Of Ultrasound Imaging In Pregnancy, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Rethinking Novotny In Light Of United Brotherhood Of Carpenters & Joiners V. Scott: The Scope And Constitutionally Permissible Periphery Of Section 1985 (3), Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

The Appropriateness And Design Of Categorical Decision-Making Systems, John J. Capowski

Faculty Scholarship

No abstract provided.

Constitutional Limits On Nationwide Personal Jurisdiction In The Federal Courts, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Value Creation By Business Lawyers: Legal Skills And Asset Pricing, Ronald J. Gilson

Faculty Scholarship

What do business lawyers really do? Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer. That is not, of course, to say that answers have not been offered; there are a number of familiar responses that we have all heard or, what is worse, that we have all offered at one time or another without really thinking very hard about them. The problem is that, for surprisingly similar reasons, none of them is very helpful.

Some Unwise Reflections About Discretion, George P. Fletcher

Faculty Scholarship

In listening to discussions about discretion in the criminal process, one has the sense of sharply cut distinctions slipping toward a black hole in our language. All decisions by police, prosecutors, judges and jury are routinely called discretionary. This usage pervades respectable, basically sound papers. In a recent article in the Yale Law Journal, Goldstein and Marcus seek to demonstrate that discretion pervades the decisions of French, German and Italian prosecutors. They write: "Claims that prosecutorial discretion has been eliminated, or is supervised closely, are exaggerated. Discretion is exercised in each of the systems [French, German and Italian] for …

Promise, Benefit, And Need: Ties That Bind Us To The Law, Kent Greenawalt

Faculty Scholarship

In this lecture, I address the fundamental question of whether we have a good moral reason for obeying the law. Understanding why we should obey the law, if we should, is the starting point for resolving conflicts between that duty and other claims upon us.

I am primarily concerned here with generally applicable laws of the state, but I also consider rules that apply to members of more limited associations, such as law schools and the bar. Concern over obligation to obey rules does not begin and end with rules of the state. Moreover, the relation of citizens to the …

Constitutional Law As Moral Philosophy, Gerard E. Lynch

Faculty Scholarship

The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or …

The Perplexing Borders Of Justification And Excuse, Kent Greenawalt

Faculty Scholarship

This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …

Criminal Coercion And Freedom Of Speech, Kent Greenawalt

Faculty Scholarship

This essay about constitutional limits on criminal coercion concerns a piece of a larger puzzle; how freedom of expression impinges on crimes that involve communication. The essay has two interrelated purposes. One is to reach some rather specific conclusions about the kinds of coercive threats that enjoy constitutional protection and to suggest how legislative formulations of criminal coercion can minimize coverage of such threats. The second purpose, more general and theoretical, is to show how the boundaries of freedom of expression can be understood and how courts can employ those boundaries to arrive at specific tests of constitutional protection. The …

Children Of The Night: The Adequacy Of Statutory Treatment Of Juvenile Prostitution, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

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 …

Biological Monitoring: The Employer's Dilemma, Frances H. Miller

Faculty Scholarship

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute …

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 …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

The Free Rider Problem, Imperfect Pricing, And The Economics Of Retailing Services, Victor P. Goldberg

Faculty Scholarship

In GTE Sylvania, the Supreme Court acknowledged what a group of law and economics scholars had been arguing for the previous two decades: vertical restrictions that limit intrabrand competition can have a desirable effect on interbrand competition. The Court approvingly accepted the argument that the free rider problem might justify a manufacturer's use of vertical restrictions. The argument, in its simplest form, is that if a retailer provides services such as advice and demonstrations to consumers, a consumer could make use of the service and then buy the product from a "no- frills" retailer. If the manufacturer cannot control the …

Rethinking Joint Custody, Elizabeth S. Scott, Andre Derdeyn

Faculty Scholarship

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent …

The Right Of Property And The Law Of Theft, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Dillon V. Legg Revisited: Toward A Unified Theory Of Compensating Bystanders And Relatives For Intangible Injuries, John L. Diamond

Faculty Scholarship

No abstract provided.

Standards Of Medical Care Based On Consensus Rather Than Evidence: The Case Of Routine Bedrail Use For The Elderly, Howard S. Rubenstein, Frances H. Miller, Sholem Postel, Hilda B. Evans

Faculty Scholarship

“An 88-year-old male patient was found on his hands and knees on the floor beside his bed. The bedrails were up.”—From an indent report filed by a nurse at the Stillman Infirmary, University Health Services, Harvard University, in May 1980.

Finding elderly patients lying on the floor beside their beds despite the presence of elevated bedrails seems paradoxical: how can a patient fall out of bed when the bedrails are up? Surprisingly, this paradox constitutes one of the leading incidents plaguing hospitals in the United States today. It exemplifies a much larger problem created, we believe, by the uncritical adoption …

Anomalies In Chemical Equilibria Near Critical Points Of Dilute Solutions, Rolfe G. Petschek

Faculty Scholarship

We show that a recent prediction that the extent of reaction of a very dilute solute near the critical point of an almost pure solvent will show strong variation with temperature at fixed volume is in error. We give arguments to show that the behavior is at most weakly singular in the sense of Griffiths and Wheeler, point out the error in the earlier argument, and show that experiments adduced as evidence for the earlier argument are subject to alternative explanation. We also consider a prediction about the behavior near the critical point of a dissociating solvent.