Law Commons^™

When You Enter The Hospital Check Your Rights At The Door, George J. Annas

Faculty Scholarship

Civil libertarians have little difficulty appreciating the plight of prisoners or mental patients. But tell the average civil libertarian that there are significant and unnecessary restrictions on the individual rights and liberties of patients in general hospitals, and you are likely to encounter a blank stare. There are a number of reasons for this lack of attention to hospitals. One is the general misconception that the problems are minor, or that certain temporary restrictions on individuals are essential if hospitals are to treat sick people properly. An unconscious desire not to perceive ourselves as being at risk may be another …

On Justifying Enforced Requirements: A Reply To Baier, David B. Lyons

Faculty Scholarship

There are limits to the possible subjects of justification. Typically, it concerns human behavior and things that human intervention can affect. Failing special circumstances, it makes no sense to speak of justifying the weather. There may be other limits to the class of possible subjects for justification; for example, it is sometimes said that a thing cannot be justified unless it has been indicted, though it is not clear how this claim should be taken. For there simply may be no point in bothering to justify something that is not suspect in some way, and the relevant condition can generally …

The Scope Of The Sixth Amendment: Who Is A Criminal Defendant?, David Rossman

Faculty Scholarship

When the Supreme Court, in Argersinger v. Hamlin, extended the right to counsel to misdemeanor defendants facing imprisonment, it raised the prospect of an eventual expansion of this right to defendants in all criminal prosecutions. This expansion appears to be the probable culmination of the historical development of the right to counsel. While prediction from a trend is never fully satisfactory, a trend toward such expansion exists nonetheless. The interpretation of the scope of the sixth amendment right to counsel as applied to the states has evolved from application to defendants in capital cases, to application to those whose lack …

Taking Stock Of Detainer Statutes, Larry Yackle

Faculty Scholarship

A detainer is a warrant or hold-order placed on a person already in custody to insure that the prisoner, upon completion of the term he is serving, will be available to the authority which filed the detainer. While penal and correctional methods and philosophies have moved far along the road of progress, this system has persistently and imperturbably plagued penal administrators, courts, and institutional personnel. Unnumbered times a detainer has proved the stumbling block to a law violator on his way to recovery.

Medical Malpractice Litigation Under National Health Insurance: Essential Or Expendable, George J. Annas

Faculty Scholarship

"Medical malpractice" denotes the basis for a civil action brought by a patient against a physician for injuries resulting from negligence. The current method for compensating victims of these occurrences is primarily a fault-and-liability insurance system. The first principle of tort liability is that the party at fault pays for the damage inflicted upon an innocent victim. Whether a doctor is at fault is determined in an adversary proceeding, with both the doctor and the patient represented by counsel. The triers of fact have the task of ascertaining whether the defendant was at fault, and if so, what compensation he …

The Burger Court, 'State Action', And Congressional Enforcement Of The Civil War Amendments, Larry Yackle

Faculty Scholarship

There is an uncertainty abroad in the land. At its root, to speak boldly, lies the fear that the fate of individual liberty in this Nation is in the hands of a Supreme Court whose newest members, cast in the intellectual likeness of a disgraced Executive, lack sufficient sensitivity to libertarian ideals to preserve the American democracy as we know it. Particularly for those who found in the Warren Court the moral leadership necessary to move the country toward a just resolution of the perplexing social problems that plague us all, the skies seem dark. Our constitutional system has always …

Law And Medicine: Myths And Realities In The Medical School Classroom, George J. Annas

Faculty Scholarship

The goal of legal education in a nutshell is to get the student to "think like a lawyer." The goal of medicolegal courses in medical schools, on the other hand, has often seemed to be to get the medical student to think bad things about lawyers. While the total solution to the legendary distrust between these two professions may not be an understanding of methodology, this article will suggest that one way to increase cooperation between the professions is to teach law in medical schools in a way that emphasizes methods of approaching problems and which seeks to dispel the …

"Fitness" For Birth And Reproduction: Legal Implications Of Genetic Screening, George J. Annas

Faculty Scholarship

The introduction of accurate methods to screen for genetic defects in the adult, the newborn, and the fetus promises to increase man's control over his own destiny. If that promise is to be realized, however, careful planning will be needed to prevent the technology of screening from imposing its own ethic on man. The invention of the club enabled man to increase his ability to hunt for food, and simultaneously to brutalize his fellow man. In the same way, while advances in genetic screening could lead to an increase in self autonomy for a few, they may also encourage the …

Thoughts On Rodriguez: Mr. Justice Powell And The Demise Of Equal Protection Analysis In The Supreme Court, Larry Yackle

Faculty Scholarship

Since the fall of 1969 when Warren Earl Burger took his seat as Chief Justice, the academic community has placed the Supreme Court under a thorough and searching examination. Coming on the heels of enormous and far-reaching activity in the judicial branch, the Burger Court has been called to account for both its adherence to and its rejection of the Warren Court's innovations in constitutional adjudication. The purpose of this article is to continue that constructive criticism by taking stock, after five years, of the Court's performance in one significant class of cases-those interpreting the equal protection clause of the …

The Division Of Legal Labor In Rural Haiti, Pnina Lahav

Faculty Scholarship

This paper explores the institutional facilities available to Haitian peasants for the settlement of their disputes. More specifically, it compares the institution of the Chef de Section - the lowest administrative appointee in the Haitian countryside and the Justice of the Peace - the lowest ranking judicial institution provided by the Haitian legal system. The paper further advances the hypothesis that at the present time there is a shift in the division of labor between the two institutions, in favor of the Justice of the Peace, and that this shift may be attributed to processes of social differentiation currently detectable …

Some Regulatory Implications Of Technology Assessment, Michael S. Baram

Faculty Scholarship

To conclude this wide-ranging panel discussion, I want to briefly address two aspects of regulation which have been troublesome, and for which Technology Assessment may be particularly useful.

The first aspect, which relates to radiation and other hazardous substances in general, is the increasingly important regulatory function of forcing the development and application of appropriate control technologies on industry-normally, the development and application of devices and techniques to protect public and worker health and safety. The question becomes: Is the regulatory program appropriately forcing and guiding necessary advances in control techniques and their timely use?

The Victim's Role In Criminal Prosecutions In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

The purpose of this paper is to review developments which have occurred in the victim’s role in criminal prosecutions under Ethiopian law. In contrast to the penal laws of modern Western states, which define a wide range of wrongful conduct as offensive to the state itself, the traditional Ethiopian law of wrongs viewed relatively few offenses thus. For the most part, the state confined itself to legitimating and assisting the victim’s own efforts to obtain redress.