Law Commons^™

Detecting Mens Rea In The Brain, Owen D. Jones, Read Montague, Gideon Yaffe

Vanderbilt Law School Faculty Publications

What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?

If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization …

Kidney Donation And The Consent Of The Poor, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

In "Consentability," Nancy Kim tackles an important and current topic—in an age of increasing options about how to live, die, and procreate, what limits, if any, should the law place on those choices? "Consentability" is a valuable resource for scholars and policymakers alike, summarizing the arguments for and against government intrusion on the choices of consenting adults with encyclopedic thoroughness. After weighing the arguments, Kim proposes that “bodily integrity exchanges” be permitted, subject to limitations. Although we agree with the general conclusion that bodily integrity exchanges should be permitted, we disagree with the specific limitations that treat the decisions of …

The Problems With Decision-Making, Joanna K. Sax

Faculty Scholarship

Our society faces major challenges in numerous areas, including climate change and healthcare. Addressing these problems with technological advances are of great importance. Increasingly, however, consumers are resisting or rejecting such technological interventions based on inappropriate assignment of risk. In other words, the consumer assessment of risk is not in line with evidence-based assessment of risk. This article focuses on two controversial areas, vaccines and genetically engineered food, as examples in which consumers assign a high risk despite an evidence-based assessment of low risk. This article describes how empirically tested decision-making theories explain why consumers inappropriately assign risk. While these …

Can Shared Decision-Making Reduce Medical Malpractice Litigation? A Systematic Review, Marie-Anne Durand, Benjamin Moulton, Elizabeth Cockle, Mala Mann, Glyn Elwyn

Dartmouth Scholarship

Background: To explore the likely influence and impact of shared decision-making on medical malpractice litigation and patients’ intentions to initiate litigation.

Methods: We included all observational, interventional and qualitative studies published in all languages, which assessed the effect or likely influence of shared decision-making or shared decision-making interventions on medical malpractice litigation or on patients ’ intentions to litigate. The following databases were searched from inception until January 2014: CINAHL, Cochrane Register of Controlled Trials, Cochrane Da tabase of Systematic Reviews, EMBASE, HMIC, Lexis library, MEDLINE, NHS Economic Evaluation Database, Open SIGLE, PsycINFO and Web of Knowledge. We also hand …

Intervention Impact On Depression Product Appraisal And Purchasing Behavior By Employers: A Randomized Trial, Kathryn M. Rost, Donna Marshall, Stanley Xu

Mental Health Law & Policy Faculty Publications

Background: Employers can purchase high quality depression products that provide the type, intensity and duration of depression care management shown to improve work outcomes sufficiently for many employers to achieve a return on investment. The purpose of this randomized controlled trial was to test an intervention to encourage employers to purchase a high quality depression product for their workforce.

Methods: Twenty nine organizations recruited senior health benefit professional members representing public or private employers who had not yet purchased a depression product for all 100+ workers in their company. The research team used randomization blocked by company size to …

Comparative Effectiveness Research As Choice Architecture: The Behavioral Law And Economics Solution To The Health Care Cost Crisis, Russell Korobkin

Michigan Law Review

With the Patient Protection and Affordable Care Act (“ACA”) set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. “Consumer directed health care” proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed. This Article proposes a government-facilitated …

A Restatement Of Health Care Law, David Orentlicher

Scholarly Works

No abstract provided.

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Articles

Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …

Can Consumers Make Affordable Care Affordable? The Value Of Choice Architecture, Eric J. Johnson, Ran Hassin, Tom Baker, Allison T. Bajger, Galen Treuer

All Faculty Scholarship

Starting this October, tens of millions will be choosing health coverage on a state or federal health insurance exchange as part of the Patient Protection and Affordable Care Act. We examine how well people make these choices, how well they think they do, and what can be done to improve these choices. We conducted 6 experiments asking people to choose the most cost-effective policy using websites modeled on current exchanges. Our results suggest there is significant room for improvement. Without interventions, respondents perform at near chance levels and show a significant bias, overweighting out-of-pocket expenses and deductibles. Financial incentives do …

Health Care Decision Making In The Veterans Health Administration: The Legal Significance For Informed Consent And Advance Directives, Liliana Kalogjera Barry

Marquette Elder's Advisor

No abstract provided.

An Insurance Structure To Encourage Investment In Preventative Health Care, Nicholas Georgakopoulos

University of Michigan Journal of Law Reform

The incentives for investments in Americans' health are poorly aligned. Health insurers are not sufficiently motivated to invest for the long term. The structure of health insurance does not compensate insurers for investments in lasting health, such as measures preventing chronic disease. If an American changes insurers, the new insurer reaps the benefits of the good health the prior insurer's investment produced. This Essay explores insurers' incentives to invest in health, illustrates how those incentives fail, explores possible improvements, and shows that subsequent insurers should have an obligation to compensate the prior insurer for the averted expenses of expected diseases …

Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker

Michigan Journal of Gender & Law

If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …

Adolescent Decision Making: Reduced Culpability In The Criminal Justice System And Recognition Of Capability In Other Legal Contexts, Samantha Schad

Journal of Health Care Law and Policy

No abstract provided.

The Failure Of Breast Cancer Informed Consent Statuses, Rachael Anderson-Watts

Michigan Journal of Gender & Law

Breast cancer informed consent legislation was introduced in response to breast cancer patient discontent with doctor-patient relationships. Physicians do not always believe that explaining treatment alternatives is important, and in this respect, legislation promoting the discussion of alternative treatment could be positive for breast cancer patients, many of whom do in fact have several viable medical options. Studies have found, however, that these statutes have no lasting impact on patient decision-making. Why aren't these patient-driven statutes affecting patient decision-making? And why is medical advice coming from the law at all? This Article argues that this legislation is a poor tool …

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Procedural Choices In Regulatory Science, Sheila Jasanoff

RISK: Health, Safety & Environment (1990-2002)

This paper compares four approaches to using science in regulatory decision making - one very similar to the Science Court proposal. Professor Jasanoff argues generally that that proposal would be less useful than procedures more sensitive to the distinctive characteristics of regulatory science.

Consensus Development At Nih: What Went Wrong, Itzhak Jacoby

RISK: Health, Safety & Environment (1990-2002)

A close observer identifies the Science Court concept as inspiring consensus development conferences at the National Institutes of Health and describes the extent to which they have followed the model. Professor Jacoby also argues that, if the model were more closely followed, conference objectives would be better realized.

Doctors At Risk: A Problem As Viewed By Decision Analysis, Leonard P. Caccamo, Kimbroe J. Carter, Barbara A. Erickson, William R. Johnson, Edward Kessler

RISK: Health, Safety & Environment (1990-2002)

The authors closely analyze a case in which a Peer Review Organization cited a physician for treatment with potential for significant adverse effect. They also critique the regulatory scheme under which peer review occurs and conclude that such regulation interferes with physicians' primary obligations, fails to encourage cost-effective behavior and may decrease the quality of medical care.