Law Commons^™

The Stagnation Of Texas Ground Water Law: A Political V. Environmental Stalemate., Karen H. Norris

St. Mary's Law Journal

The rapidly increasing Texas population coupled with the scarcity of water resources has created an urgent need for regulation of ground water pumpage. The extraction of ground water in Texas remains largely unregulated. Texas landowners, by virtue of their surface ownership, have property rights in all underlying ground water. As such, Texas landowners have the right to unlimited pumpage of the ground water beneath their land. Texas landowners have jealously guarded this right at the expense of our environment and future water resources. The Texas legislature created conservative underground water districts to help preserve water resources. However, the limited scope …

Reinvigorating Title Vi: Defending Health Care Discrimination—It Shouldn’T Be So Easy, Sidney D. Watson

All Faculty Scholarship

... Mrs. Carolyn Payne, a 21-year-old black resident of Holly Springs, Mississippi, delivered her own baby in the front seat of a truck after the emergency room of the Marshall County Hospital had refused admission.'¹

... Ysidro Aguinagas, an 1 1-month-old Hispanic baby, died... after being denied admission to a public hospital in Dimmitt, Texas, despite the fact that the hospital was ... publicly financed. The baby would not be admitted without a $450 deposit.²

... an Hispanic man, conscious and speaking Spanish, arrived at an emergency room at 7 p.m. for treatment of stab wounds suffered in …

Introduction To Keynote Speaker Randall Bovbjerg, Joel J. Finer

Journal of Law and Health

There is probably no constitutional duty on the government to provide medical care; for the Court recently reaffirmed, in Deshaney, the current Court's view of our Constitution as prohibiting governmental wrongs rather than granting entitlements from the government. We say there is a moral duty to provide medical care to those who cannot afford such care. Where does the moral right to receive basic medical care come from?

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

The Original Intent Of The Education Article Of The Texas Constitution., Mikal Watts, Brad Rockwell

St. Mary's Law Journal

Abstract Forthcoming.

Current Procedures For Performing Meaningful Discussions In Federal Negotiated Procurements Are Uneconomical, Inefficient, And Ineffective - A Proposal For Improvement., Howard L. Speight

St. Mary's Law Journal

Abstract Forthcoming.

Nonparties To Employment Discrimination Consent Decrees May Attack, In A Collateral Lawsuit, Decisions Made Pursuant To The Decrees., Michael T. Larkin

St. Mary's Law Journal

In Martin v. Wilks, the United States Supreme Court held nonparties to employment discrimination consent decrees may attack, in a collateral lawsuit, decisions made pursuant to the decrees. A consent decree is a voluntary judgment between parties which facilitates settlement of litigation by providing one party with equitable relief. Courts retain jurisdiction over parties to a consent decree, and they can issue contempt orders to parties violating the terms of the decree. Unlike judgments, the parties cannot challenge the consent decrees, except in limited circumstances. Recently, federal courts have widened the scope of preclusion law by defining the term “claim” …

Keynote Address: Helping The Uninsured: Health Insurance In Ohio And In The Nation, Randall R. Bovbjerg

Journal of Law and Health

This article briefly discusses five salient issues for decision makers to ponder, in Ohio and in the nation: (1) What, exactly, is the problem? (2) What about National Health Insurance (NHI)? (3) What roles are likely for national, state, and local governments? (4) How can one design solutions and evaluate the trade-offs they pose? (5) What are we willing to pay? A major conclusion is that many ways exist to provide subsidized coverage or other access to care. In other words, many possible solutions exist. They have different emphases, different structural characteristics, different benefits, and different price tags. What does …

Introduction, Steven Smith, David Sweet

Journal of Law and Health

Introduction to Symposium

Opening Remarks: An Overview Of The Problem, Robert E. Eckardt

Journal of Law and Health

It is a pleasure to be here this morning and to give you some opening comments about what is obviously a very important issue and one that I think does require the involvement of a multitude of different persons from public policy, public health, law and other fields. As I look at the Conference program, however, I feel a little bit uneasy with my assignment since those of us in Foundations are quintessential consultants; we are not really out on the front line doing anything, but are instead providing advice, assistance, counseling, and sometimes money, to those who are out …

Defining The Problem And Searching For Solutions: Health Care Providers And Consumers, Richard Buxbaum, Frank Kimber, Henry Manning, David W. Van Heeckeren

Journal of Law and Health

A panel consisting of health care providers and consumers discussed defining the problem and searching for solutions. Richard Buxbaum of the Greater Cleveland Hospital Association addressed uncompensated care, otherwise known as charity care, as a problem for hospitals. Mandating employer based health insurance was offered as a solution. Frank Kimbler of the Federation for Community Planning gave an overview of the consumer side of the uninsured problem. He mentioned a joint pilot project to insure the working poor. Henry Manning of Metrohealth explained how price competition between hospitals creates a problem for urban teaching hospitals which bear the costs of …

Law And Legislation In Ohio, Jane Campbell, Ray Miller, Grace Drake, Susan Sheutzow

Journal of Law and Health

A discussion of the current Ohio health insurance law regarding the uninsured and underinsured and what the Ohio legislature is trying to do about it. Jane Campbell discussed adopting a system similar to the Canadian health care system, creating an Ohio health care trust fund, and helping those in high-risk health care categories. Ray Miller addressed indigent health care and the Hagan bill. Grace Drake said that universal health care has not been successful where it has been tried, so the focus should be on the working poor and uninsured.

The Right To Refuse Medical Treatment In Ohio After Cruzan: The Need For A Comprehensive Legislative Solution, Thomas J. Onusko, Patricia Casey Cuthbertson

Journal of Law and Health

This paper will first review the development of Ohio case law prior to the Supreme Court's decision in Cruzan v. Director, Missouri Department of Health along with the Cruzan decision and Ohio's Durable Power of Attorney for Health Care statute. Next, the constitutionality of the limitations in the Durable Power of Attorney Health Care statute will be discussed. The standard of evidence which must be met in Ohio in order to implement an incompetent's wishes regarding medical treatment in the absence of a durable power will be analyzed. Recommendations will be presented regarding what Ohioans should do in order to …

Medicare/Medicaid Reimbursement Issues - A Provider's Perspective, Deborah M. Naglak

Journal of Law and Health

In 1965, Congress took its first historical step towards the ideal of universally accessible health care services with the enactment of the Medicare and Medicaid programs. These programs are federally subsidized health insurance programs administered by the Health Care Financing Administration within the Department of Health and Human Services. Under the Medicare statute, the federal government reimburses providers of medical services for care rendered to elderly or disabled patients, subject to guidelines and limitations. The Medicare Act establishes the costs allowed for reimbursement for services and authorizes the Secretary of the Department of Health and Human Services (HHS) to promulgate …

Do Smokers Underestimate Risks?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper uses a national survey of 3,119 individuals to examine the effect of lung cancer risk perceptions on smoking activity. Both smokers and nonsmokers greatly overestimate the lung cancer risk of cigarette smoking, and the extent of the overestimation is much greater than the extent of underestimation. These risk perceptions in turn significantly reduce the probability of smoking, as suggested by an economic model of risky consumption decisions. Cigarette excise taxes in effect endow individuals with additional risk perceptions comparable to their current assessed lung cancer risks

Utility Functions That Depend On Health Status: Estimates And Economic Implications, W. Kip Viscusi, William N. Evans

Vanderbilt Law School Faculty Publications

Taylor's series and logarithmic estimates of health state-dependent utility functions both imply that job injuries reduce one's utility and marginal utility of income, thus rejecting the monetary loss equivalent formulation. Injury valuations have unitary income elasticity, and the valuation of non-incremental risk changes and effects of base risks follow economic predictions.

Surrogate Fatherhood?, Frances H. Miller

Faculty Scholarship

No abstract provided.

Constitutionalizing The 'Right To Die', Thomas Wm. Mayo

Faculty Journal Articles and Book Chapters

Following the Supreme Court’s unprecedented acceptance of three abortion cases, and for the first time a case involving the withdrawal of life-sustaining medical treatment in the upcoming 1989 Term, this article addresses the so-called right to die. Specifically, as in Cruzan v. Director, Missouri Department of Health, whether the federal constitutional right of privacy extends to decisions, made on behalf of permanently unconscious patients, to have life-sustaining medical treatment discontinued and, if so, whether a state’s interest in the sanctity of life can override the patient’s privacy right? This article argues that on doctrinal as well as policy grounds, no …

Mental Health Care For Children: Before And During State Custody, The Honorable K. Edward Greene

Campbell Law Review

This Article...suggests the need to attend more carefully to the care of children after they are removed from their homes. Specifically, it will address the state's obligation to provide mental health care to children in the home and to those removed from the home and in state custody.

Fetal Tissue Research And Abortion: Do They Have A Future Together?, Angela M. Skerrett

Campbell Law Review

This Comment will examine fetal tissue research as it relates to the issue of abortion. First, the Comment discusses the current status of fetal tissue research. Second, the Comment looks at the influence of abortion on fetal tissue research, including constitutional and ethical issues. Third, the Comment examines the future of fetal tissue research. Finally, this Comment will conclude that the attitudes, opinions and laws concerning abortion will play a major role in determining the future of fetal tissue research.

Webster V. Reproductive Health Services: A Path To Constitutional Equilibrium, Mark E. Chopko

Campbell Law Review

This Article is intended as part of a symposium and a debate on substantive due process and the decision in Webster v. Reproductive Health Services. This writer, although here a commentator on the law, does have an opinion on the ultimate question: Roe v. Wade was wrongly decided.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Stop, In The Name Of Love!, George P. Smith Ii

Scholarly Articles

Although the traditional means for affording access to goods and services in a capitalistic economy is the free market system, Americans have been unwilling in the past - for the most part - to either condone or accept financial ability as the central means for distributing health care. Responding to this attitude or consensus, the United States Congress established both Medicare and Medicaid programs to deal with the commitment to provide health care services regardless of ability to pay. Recent surveys show, however, that while the American public is concerned about the idea or principle of providing not only health …

The Fear Of Liability And The Use Of Restraints In Nursing Homes, Sandra H. Johnson

All Faculty Scholarship

In nursing homes, restraints are intended to protect residents with mental or physical disabilities from avoidable injuries. However, dangers inherent in the use of restraints on elderly patients - including strangulation, agitation, and unnecessary immobility - weigh strongly against restraints’ protective effects. This article identifies the risk of liability as a factor contributing to the overuse of restraints and argues against such defensive practice on legal, regulatory, and ethical grounds.

The article first considers liability sourced in negligence/malpractice litigation on restraints and highlights the often inflated and unreasonable perception of risk here. An examination of the reported cases involving restraints …

A Decade Of A Maturing Epidemic: An Assessment And Directions For Future Public Policy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The author's goal in this article, is not merely to propose public health strategies for the future, but also to examine why government has been so slow, so equivocal, in its public health response to the acquired immune deficiency syndrome (AIDS) epidemic. He argues that there has been a fundamental ambivalence in perceptions of the epidemic. For some, AIDS is perceived as a disease, with sympathy for sufferers. Once AIDS is viewed as a disease, like other catastrophic diseases, it follows that public policy will be based upon science and epidemiology--health education, research and treatment.

For others, AIDS is caused …

Annual Survey Of Virginia Law: Recent Developments In Medical Malpractice And Health Care Law, Peter M. Mellette

University of Richmond Law Review

Over the past year, medical malpractice and health care law in the Commonwealth have undergone significant changes. Major case decisions and significant legislative activity, both at the state and federal levels, have altered the playing field for many health care providers, insurers, and consumers.

The Ethical And Legal Implications Of Hired Maternity, William J. Wagner

Scholarly Articles

If an effective exploration of the ethics of the civil law's response to the practice of hired maternity is to occur, the abstract analysis of the personal ethics of hired maternity must at a certain point give way to a statement of the generic goals that ethics can be said to establish in the area for lawmaking as such. Clarity about the appropriate moral purposes of law mediates between more abstract moral principles and the concrete demands peculiar to making of laws on a concrete issue.

Here, the development of such a statement is an intermediate step towards the article's …

The Right To Die: Green Lights And Yellow Lights, Yale Kamisar

Articles

In the long-awaited and much-discussed Nancy Cruzan case, a 5-4 Supreme Court majority ruled that absent "clear and convincing evidence" that a once but no longer competent patient wishes to discontinue her life support (in this instance artificial nutrition and hydration) a state is not constitutionally compelled to terminate that support.

Nancy's situation is tragic. Since suffering severe injuries in 1983, she has been in a persistent vegetative state. Yet medical experts testified that if her feeding tube were not removed she could linger on in her present condition for many years.

But the first thing to keep in mind …

The Contractual Reallocation Of Procreative Resources And Parental Rights: The Natural Endowment Critique, William J. Wagner

Scholarly Articles

This article inquires into the meaning and value of contract as a principle for ordering technologically assisted human reproduction. The article seeks to provide an analytically sound definition of this contractual option for ordering the new reproductive technologies, an accurate statement of its current legal status, and an assessment of its theoretical cogency and political and practical appeal. The purpose of the article is the clarification and critique of contract-based proposals for a new legal ordering of human reproduction. On a more general level, it seeks to contribute to a sound conceptual framework for the ongoing discussion of the legal …

Walking In Their Shoes: Paying Respect To Incompetent Patients, D. Don Welch

Vanderbilt Law Review

One of the great games that judges play is to act as if their decisions are based on objective standards. For understandable reasons,judges prefer that their decrees be seen as resting on accepted principles of law rather than on a judicial choice between two competing,plausible opinions. One such accepted principle has been that decisions giving consent for medical treatment of incompetent patients should be made to serve the "best interests" of the patients.' In recent years,courts increasingly have used a new, seemingly less objective standard called "substituted judgment" to replace the best interests standard in certain situations. Under this new …