Law Commons^™

Menstrual Justice In Theoretical Context, Vivian E. Hamilton

Faculty Publications

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In …

How Analogizing Socio-Legal Responses To Organ Transplantation Can Further The Legalization Of Reproductive Genetic Innovation, Myrisha S. Lewis

Faculty Publications

The Nobel Foundation emphasized the significance of genetic innovation to society, science, and medicine by awarding the 2020 Nobel Prize in Chemistry to “the CRISPR/Cas9 genetic scissors.” This Article focuses on “reproductive genetic innovation,” a term that includes cytoplasmic transfer, mitochondrial transfer, and germline or heritable gene editing techniques that are all categorized as “experimental” in the United States. These techniques all use in vitro fertilization, a legal and widely available practice. Yet reproductive genetic innovation has resulted in controversy and numerous barriers including a recurring federal budget rider, threats of federal enforcement action, and the unavailability of federal funding. …

Is Germline Gene Editing Exceptional?, Myrisha S. Lewis

Faculty Publications

Advances in gene editing have recently received significant scientific and media attention. Gene editing, especially CRISPR-Cas9, has revived multiple longstanding ethical debates, including debates related to parental autonomy, health disparities, disability perspectives, and racial and economic inequalities. Germline, or heritable, gene editing generates several newer, neglected bioethical debates, including those about the shared human germline and whether there is a "line" that humans should not cross.

This Article addresses several interrelated ethical and legal questions related to germline gene editing. Those questions address why, if at all, germline gene editing needs to be regulated and, if germline gene editing needs …

Beyond Gift And Bargain: Some Suggestions For Increasing Kidney Exchanges, Nathan B. Oman

Faculty Publications

Each year, thousands of people in the United States die from end stage renal disease (ESRD), despite the fact that we have the medical knowledge necessary to save them. The reason is simple: these people need a kidney transplant and we have too few kidneys. Given our current technology, the only way to meet the massive annual shortfall between the number of kidneys that are donated and the number of kidneys that are necessary to save the lives of those with ESRD is to increase the number of living donations. The debate on how to do so has often pitted …

Ptsd, Tbi, And Oth Discharges: A Case Study Of A Young Service Member, Patricia E. Roberts

Faculty Publications

No abstract provided.

Liberty Without Capacity: Why States Should Ban Adolescent Driving, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith

Faculty Publications

This Article examines the origins of the unique relationship between the psychiatric diagnosis Posttraumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry 's standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM} , and is the focus of significant controversy within psychiatry, because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person 's symptoms, …

Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry L. Macintosh

Faculty Publications

Infertile men and women have been using assisted reproductive technologies (ART) to conceive children since the first "test-tube baby" was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds forbanning novel technologies such as cloning, nuclear transfer, and ooplasm transfer.

Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (IVF) and intracytoplasmic sperm injection (ICSI). They claim children conceived through ART face an increased risk of birth defects and other health problems.

This Article examines the …

It’S Not A Small World After All: Regulating Obesity Globally, Eloisa Rodriguez-Dod

Faculty Publications

The rate of obesity and overweight among the world population has increased dramatically over the past several years in both adults and children. Childhood obesity is a critical health care concern. There have been well-publicized efforts to regulate children‘s obesity both in the U.S. and abroad through such measures as mandated nutritional school lunch programs.

This article focuses, however, on a less examined area of regulation—the recent worldwide efforts to curb obesity among adults. The regulations discussed in this article include measures proposed or adopted by either administrative agencies or legislative bodies, whether on a local or national level. The …

Book Review Of Unspeakable: The Story Of Junius Wilson, Michael Ashley Stein, Aviam Soifer

Faculty Publications

No abstract provided.

The Disordered And Discredited Plaintiff: Psychiatric Evidence In Civil Litigation, Deirdre M. Smith

Faculty Publications

This Article closely examines civil defendants' use of evidence of a plaintiff's alleged current or prior psychiatric diagnosis or treatment by analyzing and critiquing the three primary rationales offered in support of the relevancy of such evidence: to suggest an alternative or underlying cause of the plaintiff's alleged psychological injuries; to impeach the plaintiff's credibility by asserting that a mental illness interferes with her ability to recount or to perceive events accurately; and to reveal certain propensities that inform how the plaintiff likely acted with respect to the events at issue in the litigation. I note that, while attaching a …

An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Feral Courts, Deirdre M. Smith

Faculty Publications

Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory and …

Ethical Issues In Open Adoption, Frederic G. Reamer, Deborah H. Siegel

Faculty Publications

Total secrecy and confidentiality no longer typify adoption in the United States. Today, most adoptions involve an exchange of information or some form of contact between the birth family and adoptive family - so-called open adoptions. This article provides a comprehensive overview of ethical issues associated with various forms of open adoption, including issues of privacy, confidentiality, self-determination, paternalism, conflicts of interest, deception, and truthtelling.We present guidelines for social work practice in open adoptions, based on current ethical theory and ethical standards in social work.

Response - Jay Katz: From Harms To Risks, Larry I. Palmer

Faculty Publications

No abstract provided.

The Paradox Of Personality: Mental Illness, Employment Discrimination, And The Americans With Disabilities Act, Deirdre M. Smith

Faculty Publications

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between disfavored personality and mental illness, a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them disabilities, it is loath to extend …

Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer

Faculty Publications

No abstract provided.

Preserving A Precious Resource: Rationalizing The Use Of Antibiotics, Eric Kades

Faculty Publications

No abstract provided.

Broken Scales: Obesity And Justice In America, Adam Benforado, Jon Hanson, David Yosifon

Faculty Publications

This Article is not so much about the scales we use to measure weight, but the scales we use to infer causation and assign responsibility-including the scales of justice. Ultimately, the problem we face is not obesity itself. Obesity is only a symptom of the problem. When scientists and public health experts point to various environmental agents-whether larger portion sizes, corn subsidies, video games, or urban sprawl-they, too, overlook the deeper source of our troubles. Our real problem is that we have an extremely difficult time seeing and understanding the role of unseen features in our environment and within us …

Politics Of Embryonic Discourse, Kevin Quinn

Faculty Publications

In our brave new world of stem cells, clones, and parthenotes, how should we talk about early human embryos? In fashioning a response to this very thorny question, Ann Kiessling has a core message. It is: (1)that new science produces "new" conceptuses;(2) that science and scientists have failed to differentiate (with appropriate clarity) these new ex vivo conceptuses from those createdin vivo; (3) that new, more appropriate and scientifically-informed, terms are necessary; and (4) that this new language should transform the public discourse about human embryos. No one would deny that the subtleties of human embryology are neglected in public …

Genetic Health And Eugenics Precedents: A Voice Of Caution, Larry I. Palmer

Faculty Publications

No abstract provided.

Book Review Of Mental Disability In Victorian England: The Earlswood Asylum 1847-1901, Michael Ashley Stein

Faculty Publications

No abstract provided.

Disease Management And Liability In The Human Genome Era, Larry I. Palmer

Faculty Publications

No abstract provided.

Embryonic Stem Cell Research As An Ethical Issue: On The Emptiness Of Symbolic Value, Kevin Quinn

Faculty Publications

The ability to generate a wide variety of stem cell lines (in relatively renewable tissue cultures) opens up a whole new world of breathtaking possibilities for science and medicine. The possibilities include: "in vitro studies of normal embryo-genesis, human gene discovery, and drug and teratogen testing and as a renewable source of cells for tissue transplantation, cell replacement, and gene therapies." But it also opens up a world of complications.

Human EG and ES cells must be recovered from aborted fetuses or live embryos. Because primordial gonadal tissue is removed from fetuses after their death, the derivation of EO cells …

The Integrity Of Death: Resolving Dilemmas In Medicine, Larry I. Palmer

Faculty Publications

No abstract provided.

Patient Safety, Risk Reduction, And The Law, Larry I. Palmer

Faculty Publications

No abstract provided.

Paying For Suffering: The Problem Of Human Experimentation, Larry I. Palmer

Faculty Publications

No abstract provided.

Private Commissions, Assisted Reproduction, And Lawyering, Larry I. Palmer

Faculty Publications

No abstract provided.

A Rejoinder, Larry I. Palmer

Faculty Publications

No abstract provided.

Who Are The Parents Biotechnological Children?, Larry I. Palmer

Faculty Publications

We do not underestimate the difficulties of legislating on this subject. In addition to the inevitable confrontation with the ethical and moral issues involved, there is the question of the wisdom and effectiveness of regulating a matter so private, yet of such public interest. Legislative consideration of surrogacy may also provide the opportunity to begin to focus on the overall implications of the new reproductive biotechnology- in vitro fertilization, preservation of sperms and eggs, embryo implantation and the like. The problem is how to enjoy the benefits of the technology-especially for infertile couples-while minimizing the risk of abuse. The problem …

The Legal Significance Of Gestation, Larry I. Palmer

Faculty Publications

No abstract provided.