Law Commons^™

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

Obesity And Advertising Policy, Todd J. Zywicki, Debra Holt, Maureen Ohlhausen

George Mason University School of Law Working Papers Series

It is clear that Americans are getting fatter, both adults and children. This development has led some to call for a ban on food advertising directed at children. There are numerous practical and constitutional difficulties with such a policy. This article poses a more fundamental question - even if feasible, would restricting food advertising do anything to reduce obesity or even slow its trends? The article also considers whether the social costs of banning advertising could outweigh the social benefits of such an action.

This article provides a review of the literature on the fundamental causes of the American obesity …

Soft Negligence And Cause In Fact: A Comment On Ganuza And Gomez, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer’s care reduces the magnitude of the accidental harm but not when the injurer’s care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

The Bane Of Surrogate Decision Making: Defining The Best Interests Of Never-Competent Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.

This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and …

Human Rights Treaty Drafting Through The Lens Of Mental Disability: The Proposed International Convention On Protection And Promotion Of The Rights And Dignity Of Persons With Disabilities, Aaron A. Dhir

Cornell Law School Inter-University Graduate Student Conference Papers

In this piece I explore whether, if established, the proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities will be an effective way to limit abuses of the rights of persons diagnosed with mental disabilities. In Section I, I discuss the failure of international human rights law to effectively address these abuses to date. In Section II, I consider the debate surrounding the need for a disability-specific Convention. In Section III, I argue that in order for the proposed Convention to be effective, and not simply a hollow mechanism, it must reject the …

Why We Need The Independent Sector: The Behavior, Law, & Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz

Law & Economics Working Papers Archive: 2003-2009

Among the major forms of corporate ownership, the not-for-profit ownership form is distinct in its behavior, legal constraints, and moral obligations. A new empirical analysis of the American hospital industry, using eleven years of data for all urban general hospitals in the country, shows that corporate form accounts for large differences in the provision of specific medical services. Not-for-profit hospitals systematically provide both private and public goods that are in the public interest, and that other forms fail to provide. Two hypotheses are proposed to account for the findings, one legal and one moral. While no causal claims are made, …

The Debtor-Patient: In Search Of Non-Debt Alternatives, Melissa B. Jacoby

Faculty Publications

No abstract provided.

A Distance Education Primer: Lessons From My Life As A Dot.Edu Entrepreneur, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

Through my experience in developing Pace's innovative distance education program, I have learned some critical lessons about the potential and perils of providing legal education via the Internet. In the belief that my experiences are generic, not dependent on a particular law school's context, I offer these observations to assist others who seek to launch distance education initiatives in the not-for-profit sector. The following is an account of my life as an educational entrepreneur.

Medical Research Oversight From The Corporate Governance Perspective: Comparing Institutional Review Boards And Corporate Boards, Richard S. Saver

Faculty Publications

No abstract provided.

Atypical Pneumonia And Ambivalent Law And Politics: Sars And The Response To Sars In China, Jacques Delisle

All Faculty Scholarship

No abstract provided.

The Case Of The Male Ob-Gyn: A Proposal For Expansion Of The Privacy Bfoq In The Healthcare Context, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The article proceeds in three main parts. First, it discusses the general case law surrounding customer preferences for a particular gender, looking at the enactment and development of the BFOQ defense, particularly in the context of customer preferences. It argues that the courts' general rejection of the customer preference rationale for BFOQs was entirely appropriate, given that these preferences typically reflected malignant gender biases--most often, chauvinistic attitudes that result in female subordination. Second, the article examines the rise of the privacy BFOQ. It argues that the courts were correct in recognizing the privacy BFOQ, given the qualitatively different nature of …

Mainstreaming Complementary And Alternative Medicine In The Face Of Uncertainty, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

Part I of this article provides an overview of the medical necessity test, and examines the decision-making process pursuant to the test, including who makes coverage determinations and what criteria are used in making them. Part I also sets forth examples of conventional treatments that insurers routinely cover despite their questionable efficacy from a medical necessity perspective. Part II explores CAM disciplines and describes how they differ from conventional medicine. Part III discusses the legal challenges CAM faces and explores the limited extent to which CAM is covered by health insurance and the failure of state laws to provide mandates …