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Articles 1 - 30 of 102
Full-Text Articles in Law
The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond
The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond
Michigan Law Review
In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …
Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen
Informing Consent: Medical Malpractice And The Criminalization Of Pregnancy, Laura Beth Cohen
Michigan Law Review
Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ …
The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett
The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett
Michigan Law Review
Review of Unfair: The New Science of Criminal Injustice by Adam Benforado, Inside the Cell: The Dark Side of Forensic DNA by Erin E. Murphy, and Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories by Sandra Guerra Thompson.
In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker
In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker
Michigan Law Review
It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation …
Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley
Physician-Assisted Suicide In Oregon: A Medical Perspective, Herbert Hendin, Kathleen Foley
Michigan Law Review
This Article examines the Oregon Death with Dignity Act from a medical perspective. Drawing on case studies and information provided by doctors, families, and other care givers, it finds that seemingly reasonable safeguards for the care and protection of terminally ill patients written into the Oregon law are being circumvented. The problem lies primarily with the Oregon Public Health Division ("OPHD"), which is charged with monitoring the law. OPHD does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector …
Death, Dying, And Domination, Marc Spindelman
Death, Dying, And Domination, Marc Spindelman
Michigan Law Review
This Article critiques conventional liberal arguments for the right to die on liberal grounds. It contends that these arguments do not go far enough to recognize and address private, and in particular structural, forms of domination. It presents an alternative that does, which is thus more respectful of true freedom in the context of death and dying, and also more consistent with liberalism. After discussing obstacles to the achievement of a right to die that encompasses freedom from both public and private domination, the Article closes with a significant reform project within bioethics that might help bring it about.
Doctors & Juries, Philip G. Peters Jr.
Doctors & Juries, Philip G. Peters Jr.
Michigan Law Review
Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research. Contrary to popular belief the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers.
Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson
Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson
Michigan Law Review
Nearly 170 years ago, in the classic first volume of his Democracy in America, Alexis de Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." De Tocqueville viewed this as a peculiarly U.S. development. He attributed it to the authority of the judiciary in the United States to review governmental enactments and establish individual rights based on judicial interpretation of the federal and state constitution. "Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may …
Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller
Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller
Michigan Law Review
Health care in America is an expensive, complicated, inefficient, tangled mess - everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world's worst ways. Occam's razor ("Among competing hypotheses, favor the simplest one") is of little help here. There are no simple hypotheses - everything …
On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor
On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor
Michigan Law Review
Tens - perhaps hundreds - of thousands of trees could have been spared over the last forty-five years had opponents of physician-assisted death only been content to let Yale Kamisar be their exclusive spokesperson. Their movement would have lost no significant substance or persuasive force, for Kamisar's 1958 article - Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation - presaged the shape and content of the subsequent forty-five year debate over legalizing physician-assisted death ("PAD" ). Kamisar's article preceded by years the development of a whole jurisprudence relating to the withholding/withdrawing of life-sustaining medical treatment ("LSMT") and the administration of pain-relief …
The Case Against Assisted Suicide Reexamined, Ani B. Satz
The Case Against Assisted Suicide Reexamined, Ani B. Satz
Michigan Law Review
In Toni Morrison's acclaimed novel Beloved, Sethe, a runaway slave woman on the brink of capture, gruesomely murders one of her infant children and is halted seconds before killing the second. Cognizant of the approaching men, Sethe's actions are deliberate, swift, confident, and unflinching. Afterwards, she sits erect in the Sheriff's wagon. The reader is left to struggle, situating the horror of the event within the context of the reality of slavery. Was this an act of mercy tQ prevent the suffering Sethe's child would know as a slave? Is loss of autonomy, even rising to the condition of slavery, …
Revisionism Misplaced: Why This Is Not The Time To Bury Autonomy, David J. Rothman
Revisionism Misplaced: Why This Is Not The Time To Bury Autonomy, David J. Rothman
Michigan Law Review
For the past twenty years, bioethics has exerted a profound influence on American medicine. Although its full impact cannot be precisely measured, one need only speak to European physicians and clinical investigators to grasp the full extent of the change. Americans may debate the sufficiency of the information that physicians share with their patients, but hear a European doctor exclaim angrily that it is criminal to ask a woman to decide whether to have a radical mstectomy or lumpectomy, and you know that bioethics has made a significant difference in the United States. So too, Americans, far more intensely than …
Is Hiv "Extraordinary"?, Jordan B. Hansell
Is Hiv "Extraordinary"?, Jordan B. Hansell
Michigan Law Review
The Sentencing Reform Act of 1984 (the "Act") attempts to reduce inconsistencies in the sentences of defendants convicted of comparable crimes. The Act created a Sentencing Commission (the "Commission") and authorized it to promulgate a set of sentencing guidelines to steer judicial decisionmaking. To fulfill this mandate, the Commission drafted the Federal Sentencing Guidelines (the "Guidelines"), which Congress enacted in 1987. Although Congress wanted to eliminate sentencing disparities, it also wanted to allow some degree of individualized sentencing. To achieve the correct balance, the Commission created three categories of characteristics: those a court must consider in sentencing each defendant; those …
Homologizing Pregnancy And Motherhood: A Consideration Of Abortion, Julia E. Hanigsberg
Homologizing Pregnancy And Motherhood: A Consideration Of Abortion, Julia E. Hanigsberg
Michigan Law Review
In this essay I reconsider abortion in order to bridge what initially seem to be two opposing frameworks: first, the conception of abortion as an issue of women's bodily integrity and liberty, and second, the acknowledgement of the existence and meaning of intrauterine life. The abortion choice is indeed deeply and necessarily tied to women's bodily integrity. I will discuss how taking away women's ability to control their decision not to become mothers can be severely damaging to their very sense of self, for this denial of decisionmaking divides women from their wombs and uses their wombs for a purpose …
Waltz & Inbau: Medical Jurisprudence, Marcus L. Plant
Waltz & Inbau: Medical Jurisprudence, Marcus L. Plant
Michigan Law Review
A Review of Medical Jurisprudence by Jon R. Waltz and Fred E. Inbau
Wood: A Handbook Of Dental Malpractice, Marcus L. Plant
Wood: A Handbook Of Dental Malpractice, Marcus L. Plant
Michigan Law Review
A Review of A Handbook of Dental Malpractice by L. Brent Wood
Evidence--Medical Treatises To Be Admitted As Direct Evidence In Wisconsin--Lewandowski V. Preferred Risk Mutual Ins. Co., Michigan Law Review
Evidence--Medical Treatises To Be Admitted As Direct Evidence In Wisconsin--Lewandowski V. Preferred Risk Mutual Ins. Co., Michigan Law Review
Michigan Law Review
Defendant's attorney in a personal injury action sought on cross-examination to impeach plaintiff's physician regarding his determination of the degree of plaintiff's disability by referring to the medical standards set forth in the American Medical Association's Guide to the Evaluation of Permanent Impairment--The Extremities and Back. Pointing to the physician's testimony that he had not relied on the Guide in making his evaluation, the trial court sustained plaintiff's objection that such cross-examination was not permissible. On appeal, the Wisconsin Supreme Court held that the trial court was correct in sustaining the objection in accordance with the established rule that it …
The "Heart Cases" In Workmen's Compensation: An Analysis And Suggested Solution, Arthur Larson
The "Heart Cases" In Workmen's Compensation: An Analysis And Suggested Solution, Arthur Larson
Michigan Law Review
It is one of the great tragedies of the workmen's compensation story that almost all courts, in their perfectly justifiable search for a legal barrier that would keep compensation heart liability from getting out of hand, have seized upon the wrong component in the coverage formula. The words "by accident" or their equivalent were pressed into service for this task, ·and they have proved to be a most ill-fitting tool for this function. If the courts had followed the more logical course of testing these cases by the causal principle prescribed by the words "arising out of the employment," there …
The Unborn Plaintiff, David A. Gordon
The Unborn Plaintiff, David A. Gordon
Michigan Law Review
It is almost twenty-five years since Professor Winfield's article "The Unborn Child" was published. The development of this area of the law during the past quarter century is probably summed up in the distinction between that title and the one to this article.
A Child Conceived Through Artificial Insemination By A Third-Party Donor Is Illegitimate-Gursky V. Gursky, Michigan Law Review
A Child Conceived Through Artificial Insemination By A Third-Party Donor Is Illegitimate-Gursky V. Gursky, Michigan Law Review
Michigan Law Review
Husband and wife, upon discovery of the husband's inability to father children, sought to have the wife artificially inseminated. The husband gave his written consent to the clinical impregnation and agreed to pay for it. As a result of the artificial insemination a child was born. Subsequently, the wife sought an annulment and petitioned for support of this child. Held, annulment granted, and child declared illegitimate. A child conceived through artificial insemination by a third-party donor, even though done with the consent of the mother's husband, is illegitimate. Gursky v. Gursky, 39 Misc. 2d 1083, 242 N.Y.S.2d 406 …
Trusts-Termination-Proof Of Impossibilty Of Issue, Charles F. Niemeth
Trusts-Termination-Proof Of Impossibilty Of Issue, Charles F. Niemeth
Michigan Law Review
The surviving trustee of a testamentary trust petitioned the probate court for authority to terminate and distribute the trust in accordance with a compromise agreement between all interested persons apart from the possible issue of one beneficiary. Undisputed medical testimony was received that neither the beneficiary nor his wife were capable of procreation. On a question of law certified to the New Hampshire Supreme Court, held, remanded with instructions to terminate and distribute the corpus of the trust. Termination of a trust in prejudice of the interests of possible future issue is permissible when the possibility of such issue …
Radiation Injuries: Statute Of Limitations Inadequacies In Tort Cases, Samuel D. Estep, Thomas W. Van Dyke
Radiation Injuries: Statute Of Limitations Inadequacies In Tort Cases, Samuel D. Estep, Thomas W. Van Dyke
Michigan Law Review
Some injuries from overexposure to radiation may manifest themselves within existing statutory limitations periods, at least under some liberal ( or loose) judicial interpretations. Many injurious manifestations, however, will not arise for a great many years after exposure; it is the thesis of this article that some new legislative solutions must be adopted. Limiting the right to sue to the existing time periods as construed by many courts will be manifestly unfair to plaintiffs. A blanket, unconditional extension of the time period to as much as thirty years for all cases regardless of the local rule as to when the …
Radiation Injuries And Time Limitations In Workmen's Compensation Cases, Samuel D. Estep, Walter R. Allan
Radiation Injuries And Time Limitations In Workmen's Compensation Cases, Samuel D. Estep, Walter R. Allan
Michigan Law Review
The increasing use of radioactive materials and radiation-producing devices in industry and elsewhere makes it clear that injuries from exposure to radiation must be anticipated. It becomes relevant, therefore, to inquire into the extent to which the present workmen's compensation statutes will be able to cope with the injuries which may arise from the use of this new source of energy.
Fraenkel: Lawyer's Medical Cyclopedia Of Personal Injuries And Allied Specialties, C. W. Muehlberger Ph.D.
Fraenkel: Lawyer's Medical Cyclopedia Of Personal Injuries And Allied Specialties, C. W. Muehlberger Ph.D.
Michigan Law Review
A Review of Lawyer's Medical Cyclopedia of Personal Injuries and Allied Specialties . Edited by Charles ]. Fraenkel, M.D., and others.
Courts-Scope Of Authority-Sterilization Of Mental Defectives, William R. Warnock
Courts-Scope Of Authority-Sterilization Of Mental Defectives, William R. Warnock
Michigan Law Review
Respondent, age nineteen, appeared before the probate court of Muskingum County, Ohio, upon an affidavit filed by her mother alleging the child to be feeble-minded and in need of medical treatment. Results of psychological tests were presented at the hearing, revealing that respondent had an intelligence quotient of thirty-six and was therefore a feeble-minded person within the statutory definition. Respondent had had one illegitimate child, for whom she was unable to provide even rudimentary care or financial support, and was physically capable of bearing more children. Taking judicial notice that the state mental hospitals were then overcrowded and unable to …
Negligence-Res Lpsa Loquitur-Application To Medical Malpractice Actions: 1951-196, Peter D. Byrnes S.Ed.
Negligence-Res Lpsa Loquitur-Application To Medical Malpractice Actions: 1951-196, Peter D. Byrnes S.Ed.
Michigan Law Review
Res ipsa loquitur, "the thing speaks for itself," has been the subject matter of extensive legal literature since its inception almost a century ago. It is now well settled that res ipsa loquitur is no more than an inference of negligence from circumstantial evidence. The doctrine is applicable if an act or occurrence is of the type that ordinarily would not take place without negligence, assuming the plaintiff has himself been passive, and if the instrumentality causing the harm is within the exclusive control of the defendant. The application of res ipsa loquitur to the medical malpractice area has …
Legal, Medical And Psychiatric Considerations In The Control Of Prostitution, B. J. George Jr.
Legal, Medical And Psychiatric Considerations In The Control Of Prostitution, B. J. George Jr.
Michigan Law Review
In common with other nations of the world the United States today as in the past is faced with the problem of controlling prostitution, particularly in urban areas. At one time or another states and cities in the United States have experimented with the classic methods of controlling prostitution: reglementation, segregation and repression. Reglementation of individual houses or prostitutes has never been carried out on a statewide basis in any state in the United States, though one can find instances in certain large cities in the nineteenth and early twentieth centuries in which city ordinances or de facto police regulations …
Damages-Pain And Suffering-Use Of A Mathematical Formula, Thomas D. Heekin S .Ed.
Damages-Pain And Suffering-Use Of A Mathematical Formula, Thomas D. Heekin S .Ed.
Michigan Law Review
Measurement of damages for pain and suffering is, in a sense, an attempt to measure the unmeasurable; yet as long as our law recognizes a right to recover for pain and suffering, the jury or judge must arrive at some concrete figure. The traditional approach of simply instructing the jury that they should arrive at a reasonable amount provides little, if any, guidance. The question is whether this approach, nevertheless, remains the best of a bad lot of alternatives. If more guidance is desirable, what can be accomplished within the framework of our present system? The mathematical formula discussed in …
Criminal Law - Insane Persons - Competency To Stand Trial, John H. Hess M.D., Henry B. Pearsall S.Ed., Donald A. Slichter S.Ed., Herbert E. Thomas M.D.
Criminal Law - Insane Persons - Competency To Stand Trial, John H. Hess M.D., Henry B. Pearsall S.Ed., Donald A. Slichter S.Ed., Herbert E. Thomas M.D.
Michigan Law Review
Mental unsoundness in a person accused of a crime raises two distinct legal questions. One is the question of the individual's responsibility for his behavior and the other is the question of the individual's competency to enter into the legal procedures of trial or punishment. In recent years considerable attention has been given to matters of responsibility, but relatively little attention has been paid to the problem of incompetency and especially to the consequences of incompetency proceedings. In order to analyze and evaluate the operations of the Michigan law in the area of incompetency to stand trial, two psychiatrists joined …
Criminal Law - Insane Persons - Influence Of Mental Illness On The Parole Return Process, David G. Davies S.Ed., John H. Hess M.D.
Criminal Law - Insane Persons - Influence Of Mental Illness On The Parole Return Process, David G. Davies S.Ed., John H. Hess M.D.
Michigan Law Review
Defendants in the criminal process are divided into rigidly exclusive categories of mental health. The competent to stand trial are first separated from the incompetent. Then the competent are divided on the basis of their mental state at the time of their acts between the "sane" and the "insane." As long as these rigid categories are administered in an adversary trial system, some misdirection of victims of serious mental illness into the penal system is almost inevitable. Even where mental illness might otherwise prevent conviction, those accused of non-capital felonies are not likely to raise the question, and few courts …