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Articles 1 - 22 of 22
Full-Text Articles in Law
Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski
Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski
Cleveland State Law Review
In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …
Consentability, Autonomy, And Self-Actualization, Jonathan Witmer-Rich
Consentability, Autonomy, And Self-Actualization, Jonathan Witmer-Rich
Law Faculty Articles and Essays
This essay evaluates several competing principles underlying consent, such as self-interest, self-sovereignty, and self-actualization. Witmer-Rich argues that the nature of consent depends heavily on which of these underlying values consent is believed to serve and concludes that “self-actualization—the ongoing human project of creating and embodying coherent and meaningful values and choices—is the most fundamental good of autonomy and is the good that society should seek to further in the law of consent.”
Against Notice And Choice: The Manifest Failure Of The Proceduralist Paradigm To Protect Privacy Online (Or Anywhere Else), John A. Rothchild
Against Notice And Choice: The Manifest Failure Of The Proceduralist Paradigm To Protect Privacy Online (Or Anywhere Else), John A. Rothchild
Cleveland State Law Review
Notice and choice are the foundational principles underlying the regulation of privacy in online transactions and in most other situations in which individuals interact with the government and commercial interests. These principles mean that before collecting personally identifiable information (PII) from an individual, the collector must provide the individual with a disclosure (notice) of what PII it proposes to collect and how it proposes to use that information. That knowledge enables the individual to make a rational decision (choice) about whether to allow that collection of information, generally by declining to enter into the transaction or, in some situations, by …
The Ethics In Synthetics: Statistics In The Service Of Ethics And Law In Health-Related Research In Big Data From Multiple Sources, Sharon Bassan Ph.D., Ofer Harel Ph.D.
The Ethics In Synthetics: Statistics In The Service Of Ethics And Law In Health-Related Research In Big Data From Multiple Sources, Sharon Bassan Ph.D., Ofer Harel Ph.D.
Journal of Law and Health
An ethical advancement of scientific knowledge demands a delicate equilibrium between benefits and harms, in particular in health-related research. When applying and advancing scientific knowledge or technologies, Article 4 of UNESCO’s Universal Declaration on Bioethics and Human Rights, ethically justifiable research requires maximizing direct and indirect benefits and minimizing possible harms. The National Institution of Health [NIH] Data Sharing Policy and Implementation Guidance similarly states that data necessary for drawing valid conclusions and advancing medical research should be made as widely and freely available as possible (in order to share the benefits) while safeguarding the privacy of participants from potentially …
It's Good To Be Autonomous: Prospective Consent, Retrospective Consent, And The Foundation Of Consent In The Criminal Law, Jonathan Witmer-Rich
It's Good To Be Autonomous: Prospective Consent, Retrospective Consent, And The Foundation Of Consent In The Criminal Law, Jonathan Witmer-Rich
Law Faculty Articles and Essays
What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a …
Exclusive Or Concurrent Competence To Make Medical Decisions For Adolescents In The United States And United Kingdom , Robert L. Stenger
Exclusive Or Concurrent Competence To Make Medical Decisions For Adolescents In The United States And United Kingdom , Robert L. Stenger
Journal of Law and Health
Medical decision-making is one area where drawing and applying a single defining line between childhood and adulthood has proven difficult. Each society determines how it will allocate decision-making authority with respect to children. This article will address how such allocations have been developed in the United States and the United Kingdom. An analysis of the capacity of an adolescent to make decisions remains incomplete without some consideration of the role of parent(s) and of the government. It is precisely here that recent developments in the United Kingdom may provide helpful guidance in the United States.
Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong
Consent To Sperm Retrieval And Insemination After Death Or Persistent Vegatative State, Carson Strong
Journal of Law and Health
Although a number of additional legal questions can be raised, including issues of paternity and inheritance, this paper focuses on the legal issues pertaining to consent, as well as the ethical questions raised above, which need to be discussed in order to address adequately the legal consent issues. The paper is organized as follows: first, the current law of consent to sperm retrieval and insemination after death or PVS is discussed in order to identify gaps in the law - areas that the law does not address or concerning which it is unclear; second, ethical issues are discussed that are …
Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise
Calling Dr. Love: The Physician-Patient Sexual Relationship As Grounds For Medical Malpractice - Society Pays While The Doctor And Patient Play, Scott M. Puglise
Journal of Law and Health
This note examines "consensual" sexual relationships between non-mental health physicians and patients. More specifically, it examines whether such relationships ever amount to medical malpractice. Generally, a non-mental health physician would be liable under the rubric of medical malpractice only if the sexual relationship was commenced under the guise of "medical treatment." Recent cases, however, have expanded liability in certain circumstances when the physician-patient relationship has involved "counseling matters." "Counseling matters" describes talking to patients about their feelings, or discussing personal problems not necessarily related to their proposed treatment. Medical treatment supplemented by "counseling" purportedly requires greater scrutiny due to the …
Race For Perfection: Children's Rights And Enhancement Drugs, Therese Powers
Race For Perfection: Children's Rights And Enhancement Drugs, Therese Powers
Journal of Law and Health
This Note will address the question of what are a child's rights when the child's views differ from his or her parents regarding the child's use or refusal of enhancement drugs such as Ritalin and Human Growth Hormone. This Note will begin with a description of Ritalin and Human Growth Hormone along with the uses and abuses of each drug. It will then discuss the evolution of children's rights dealing with situations such as civil commitment, abortion, and medical treatment over religious objection. Furthermore, it will draw comparisons from the case law in these situations to a child's right to …
Advancing The Rights Of Children And Adolescents To Be Altruistic: Bone Marrow Donation By Minors, Jennifer K. Robbennolt, Victoria Weisz, Craig M. Lawson
Advancing The Rights Of Children And Adolescents To Be Altruistic: Bone Marrow Donation By Minors, Jennifer K. Robbennolt, Victoria Weisz, Craig M. Lawson
Journal of Law and Health
This article examines the standards used for answering the question of whether minors should be allowed to donate bone marrow. Part II introduces the legal background and the standards currently used by courts. Part III explores the unsatisfactory nature of these standards. Part IV presents an empirical study that is intended to provide some help in understanding what might be a useful and respectful standard. Part V concludes the article with a discussion of two alternative revised standards grounded in the doctrines of substituted judgment and the best interests of the child.
Artificial Insemination - A Model Statute, Leonard G. Kamlet
Artificial Insemination - A Model Statute, Leonard G. Kamlet
Cleveland State Law Review
The increasing incidence of artificial inseminations in the fifties and sixties resulted in a profusion of commentary devoted to the significance of the procedure. Characteristic of the motivations of many writers were the moral, psychological, and social implications of the technique. In contrast, the creative legal response was limited. Paralleling the stagnation of judicial and legislative action in most states, the number of commentators addressing the issue in recent years has been minimal. This comment hopes to focus the attention of legislators on the need to clarify the morass surrounding artificial insemination.
Legal Aspects Of The Hospital Emergency Room, Charles U. Letourneau
Legal Aspects Of The Hospital Emergency Room, Charles U. Letourneau
Cleveland State Law Review
In any discussion of an emergency room or an emergency department or an emergency service, a definition of the terms of reference is always helpful at the start. Unfortunately, definitions of what constitutes an "emergency room" are not easily found and although numerous regulations governing hospitals refer to the provision of emergency service, none have hazarded a precise definition. Thus far, definitions all seem to be in agreement that personnel, materials and regulations should be present to insure immediacy or promptness of care. But uniform agreement on how immediacy and promptness are to be provided does not seem to be …
Police Liability For Invasion Of Privacy, Mildred Schad
Police Liability For Invasion Of Privacy, Mildred Schad
Cleveland State Law Review
No reasonable man would contend that there can be no valid invasion of privacy by police officers. But, just when do the rights of society accede to the privileges of the individual? Certain guides as to the reasonableness of a search have been determined. A search, without a search warrant, is lawful if it is incident to a lawful arrest and if the essential element of a lawful arrest, probable cause, exists.
Investigational Drugs And The Law, George F. Archambault
Investigational Drugs And The Law, George F. Archambault
Cleveland State Law Review
Moving directly to the subject "Investigational Drugs and the Law" and being concerned primarily with preventative law, a topic not unlike preventative medicine, what is it that must be known as a lawyer in this specialty field in order to aid physicians and pharmacists involved in clinical research, in clinical pharmacology research, in hospital administration, and in nursing and pharmacy practices to keep them from legal pitfalls? It is necessary to tackle the subject in a two-pronged manner: (1) the federal and state statutes, and (2) case law.
Law And The Climate Of Consent, A. B. Bonds Jr.
Law And The Climate Of Consent, A. B. Bonds Jr.
Cleveland State Law Review
In your magistral relationship with the law, I urge you to broaden among all our people the climate of understanding which will strengthen the concept of dynamic consent. I urge you to speak out to your fellow citizens and challenge them to learn better to distinguish between what is wise and unwise, and to give their proper supportive consent to that which is creative and just.
Defenses To Group Defamation Actions, Richard J. Quigg
Defenses To Group Defamation Actions, Richard J. Quigg
Cleveland State Law Review
The basic defenses applicable to ordinary individual defamation, of truth, privilege (including fair comment), and consent, also apply to group defamation. Most past group defamation cases have held that language including all members of a given group,or positively identifying the plaintiff, must be used. Tort actions have been upheld when small groups are defamed; tort claims are generally disallowed in the defamation of large groups unless the public readily recognizes the defamation as being directed at one individual. A number of "group-hate" statutes have been enacted by various states, making it a criminal offense to defame a class of citizens. …
Scientific Investigation Of Intoxication, Bernard J. Conley
Scientific Investigation Of Intoxication, Bernard J. Conley
Cleveland State Law Review
The thirty years in which chemical testing for intoxication has had its inception and development has coincided with the thirty years in which the protection of the rights of the accused has almost obliterated the rights of our society to protect itself from persons bent on mischief. Despite this trend the courts have seen fit to encourage the advancement of the presentation of scientific evidence to enable the courts, both civil and criminal,to arrive at intelligent and just decisions. Scientific evidence,qualified by the ability and integrity of the expert, is the result of intelligent, systematized and skillful experimentation and research …
Scientific Investigation Of Intoxication, Bernard J. Conley
Scientific Investigation Of Intoxication, Bernard J. Conley
Cleveland State Law Review
The thirty years in which chemical testing for intoxication has had its inception and development has coincided with the thirty years in which the protection of the rights of the accused has almost obliterated the rights of our society to protect itself from persons bent on mischief. Despite this trend the courts have seen fit to encourage the advancement of the presentation of scientific evidence to enable the courts, both civil and criminal,to arrive at intelligent and just decisions. Scientific evidence,qualified by the ability and integrity of the expert, is the result of intelligent, systematized and skillful experimentation and research …
Consent To Surgery, Gerald M. Smith, R. Joseph Olinger
Consent To Surgery, Gerald M. Smith, R. Joseph Olinger
Cleveland State Law Review
The legal aspects of a patient's consent to operation, or the lack of such consent, are many and varied. The general rule is that consent of the patient, or of someone authorized to act for him, is necessary in order for a physician to legally operate. This rule is not altered by the fact that an unauthorized operation is slight and ordinarily is not accompanied by serious consequences. Where no consent is present, a surgical operation upon the body is a technical battery, and in the absence of exceptional circumstances, appropriate damages may be recovered from the physician. The question …
The Pathologist And The Autopsy, Lawrence J. Mccormack
The Pathologist And The Autopsy, Lawrence J. Mccormack
Cleveland State Law Review
The autopsy, properly performed, remains one of the keystones of modern medicine. However, obtaining the legally required consent or authorization for a medical autopsy can be a complex, almost impossible task. Simplification of the legal requirements for consent throughout the United States would be a definite step forward for medicine, and would benefit society generally.
Federal Tort Claims Act Summarized, Russell E. Ake
Federal Tort Claims Act Summarized, Russell E. Ake
Cleveland State Law Review
To attempt a brief summary of the Federal Tort Claims Act may be likened to an attempt to explain atomic energy in ten words. But such a summary may be of some usefulness to our esteemed adversaries - the plaintiff's counsel in FTCA cases. Like most statutes, both state and federal, the text of this Act is encompassed within a few paragraphs. Then there follows a welter of interpretations, exceptions, and constructions. However, I shall attempt to hit the high spots and see if we can't come at least to a general understanding of what it's about and what it …
Discharge Of Corporate Indebtedness At Less Than Face Value Under The Internal Revenue Code, Harvey Mahlig
Discharge Of Corporate Indebtedness At Less Than Face Value Under The Internal Revenue Code, Harvey Mahlig
Cleveland State Law Review
Prior to 1939 whenever a corporation paid less than the face amount of an obligation in full satisfaction thereof, taxable income was realized to the extent of the difference. In 1939 paragraph (9) was added to Section 22 (b) of the InternalRevenue Code. Therein it was provided that there should not be included in the taxable income of a corporation the amount of income attributable to the discharge of any indebtedness as evidenced by a security, provided at the time of such discharge the corporation was in an unsound financial condition. In orderto obtain the relief provided, the corporation had …