Law Commons^™

The Bipartisan Patient Protection Act: Greater Liability On Managed Care Plans, Urura W. Mayers

Annals of Health Law and Life Sciences

Mrs. Mayers' article notes the substantial differences that exist between the Senate and the House of Representatives' version of the Bipartisan Patient Protection Act of 2001. While observing the remedies made available to participants, beneficiaries, or enrollees under both bills, she shows that the Senate bill places greater liability on managed care plans because it favors consumer protection, while the House of Representatives' bill does not. In order to develop an understanding of why an act of this nature is needed, Mrs. Mayers provides a brief historical overview of how managed care entities developed. She also examines the Employee Retirement …

It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez

St. Mary's Law Journal

The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts …

Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon

St. Mary's Law Journal

Abstract Forthcoming.

Rethinking The Prohibition Of Death Row Prisoners As Organ Donors: A Possible Lifeline To Those On Organ Donor Waiting Lists., Donny J. Perales

St. Mary's Law Journal

Organ transplantation continually brings hope and new life to thousands of patients suffering from a myriad of diseases. Despite the advances in medical science and the increased survival rates of organ recipients, many are unable to receive an organ transplant because the demand for organs drastically exceeds the available supply. Much of the organ deficit lies in the current system of organ procurement. The altruism-based organ system leaves the donative decision to the individual; however, it is this system which hinders effective organ procurement. Under this system, the donor must give prior consent before a doctor can remove any organ. …

Introduction To The Second Annual Symposium On Legal Malpractice & (And) Professional Responsibility The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Adam Boland

St. Mary's Law Journal

Abstract Forthcoming.

Absolute And Perfect Candor To Clients The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Vincent R. Johnson

St. Mary's Law Journal

The fiduciary duty owed to clients by attorneys is defined by the reasonable-care standard of negligence as opposed to the all-encompassing “absolute and perfect candor” rhetoric frequently used to describe the duty owed. Words have meanings and, though the use of “absolute and perfect candor” serves a beneficial purpose, reminding attorneys of the special duty owed to their clients, the fiduciary duty owed to clients is not so all encompassing and impractical. Modern case law fails to establish that a broadly applicable duty of “absolute and perfect” candor applies to the attorney-client relationship, except in a limited number of situations. …

Tactical Considerations In Defending Assigned Legal Malpractice Claims Essay., William D. Cobb Jr.

St. Mary's Law Journal

Every Texas lawyer with a legal malpractice defense docket should be aware of the Zuniga rule and its possible exceptions. Although the general rule in Texas is that causes of action are freely assignable, because of the ruling in Zuniga v. Groce, Locke & Hebdon, legal malpractice causes of action are unassignable. The Texas Supreme Court declined to hear the case with the notation “writ refused” essentially adopting the lower court’s opinion as its own. Nonetheless, the decision in Zuniga did not resolve the problem of the insolvent judgment debtor, nor did Zuniga purport to invalidate all agreements that dispose …

The Cost Of Humanitarian Assistance: Ethical Rules And The First Amendment The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Jack P. Sahl

St. Mary's Law Journal

Abstract Forthcoming.

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly

St. Mary's Law Journal

Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the …

Accountants' Accountability To Nonclients In Texas., Jessica P. Gomez

St. Mary's Law Journal

This Comment proposes that accountants be held liable to any foreseeable user of their work product to ensure the deterrence of negligence on their part. Currently, the three main common law theories concerning whether nonclients can sue accountants for negligence are: (1) the privity rule; (2) the Restatement (Second) of Torts § 552; and (3) the foreseeability standard. Many states follow the Restatement approach entitled “Information Negligently Supplied for the Guidance of Others.” Texas imposes liability on accountants but fails to extend protections to third parties who rely upon the accuracy of financial statements. Further, Texas liability does not expose …

Punitive Damages In Texas: Examining The Need For A Split-Recovery Statute., Meredith Matheson Thoms

St. Mary's Law Journal

As a result of the increasing number and amounts of punitive damage awards, a call for reform is much warranted. Reformers and legislators continue to seek out measures to effectively limit excessive punitive damage awards and deter unnecessary and frivolous litigation. But they must consider not only the effects of the statutes but also the purposes they will serve. Split-recovery statutes can become valuable reform tool which will continue to serve the goals of punishment and retribution attached to punitive damages as well as deterrence. Split-recovery statutes arguably enlarge government, but they also serve a valuable purpose in furthering the …

Access To Health Care: What A Difference Shades Of Color Make, Gwendolyn R. Majette

Law Faculty Articles and Essays

No abstract provided.

Looking Backward: The Twentieth Century Revolutions In Psychiatry, Law And Public Mental Health, Sheldon Gelman

Law Faculty Articles and Essays

Do histories of psychiatry make a difference--or have legal implications--in the present? Does our current situation help explain what historians say about psychiatry's past? Focusing on the past half century--the era of medications-- this paper explores the reciprocal relationship between the present and the past in psychiatry. Part II sketches the medical developments that constitute the subjects of any history of psychiatry. This Part also examines related developments in law. Part III introduces some problems of psychiatric historiography and examines some historians' attempts to deal with them. Part IV analyzes the account of psychiatry's past contained in Edward Shorter's well-regarded …

Cornering The Market In A Post-9/11 World: The Future Of Horizontal Restraints, 36 J. Marshall L. Rev. 557 (2003), Daniel Goldberg

UIC Law Review

No abstract provided.

A Tribute To Gene W. Matthews, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Conference Center, across the street from the Centers for Disease Control and Prevention (CDC) on Clifton Road in Atlanta, I sat on a leather sofa with one of my oldest, dearest friends-Gene Matthews, Legal Adviser to the CDC. Gene asked to meet me to talk about how we might invigorate the field of public health law. Matthews and his colleagues at CDC were hatching an idea to commence a grass-roots movement in public health law.

Regulating Clinical Research: Informed Consent, Privacy, And Irbs, Sharona Hoffman

Faculty Publications

During the past two decades, the United States has experienced dramatic developments in the area of biomedical research. Expanding budgets, augmented computer capabilities, and the Human Genome Project have all significantly enhanced research capabilities. Consequently, the number of research projects conducted in this country is ever growing, and the enrollment of an adequate number of human subjects is becoming an increasingly challenging task.

Clinical research involving human participants is governed by federal regulations that have been promulgated by the Department of Health and Human Services (DHHS) and the Food and Drug Administration (FDA). In light of the proliferation of medical …

Walking The Talk Of Trust In Human Subjects Research: The Challenge Of Regulating Financial Conflicts Of Interest, Robert Gatter

All Faculty Scholarship

There has been a call for more stringent regulation of financial conflicts of interest in human subjects research following the deaths of several individuals who volunteered to participate in human subjects research, which deaths were linked to the financial conflicts of interest of participating researchers and research institutions. Each proposal argues that regulation is necessary to restore trust in medical research. This Article examines whether proposed strategies for regulating financial conflicts of interest are likely to achieve the goal of a trustworthy human research enterprise. It does not question whether enhancing trustworthiness is an appropriate goal; rather, it assumes that …

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of …

Going To Pot, Carl E. Schneider

Articles

In several earlier columns, I suggested that judges are usually poorly placed to make good biomedical policy, not least because the law so rarely offers them direct and cogent guidance. Recently, the U.S. Court of Appeals for the Ninth Circuit proffered a new example of this old problem. In 1996, California's voters approved Proposition 215. Its "Compassionate Use Act of 1996" provided -that a patient "who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" committed no crime.

When Terrorism Threatens Health: How Far Are Limitations On Personal And Ecomonic Liberties Justified, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The government is engaged in a homeland-security project to safeguard the population's health from potential terrorist attacks. This project is politically charged because it affords the state enhanced powers to restrict personal and economic liberties. Just as governmental powers relating to intelligence, law enforcement, and criminal justice curtail individual interests, so too do public health powers.

Pushing Drugs: Genomics And Genetics, The Pharmaceutical Industry, And The Law Of Negligence, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This article presents a piece of a larger, ongoing project on the phenomenon of market-driven manufacturing (MDM) and how tort law should address it. In contrast to the larger project, this article provides a relatively brief overview of the general phenomenon of MDM, but zeros in on how pharmaceutical manufacturers specifically practice MDM. MDM is a well-documented, much practiced activity, although American courts do not recognize MDM as a discrete category of conduct. The basic idea of MDM is that marketing considerations should continuously control every aspect and stage of a product's lifecycle. When a company engages in MDM, it …

The Impact Of 9/11 And Its Aftermath On Substance Use And Psychological Functioning: An Overview, Patrick B. Johnson, Linda Richter

Fordham Urban Law Journal

This Essay provides a brief summary and evaluation of findings on the mental health and substance abuse consequences of the events of 9/11 throughout the nation and in United States' cities. It also presents new data obtained from clients who entered substance abuse treatment in New York and other cities either before 9/11 or during a six-month period following the events. This Essay discusses how best to interpret these varying research findings. It concludes that crisis produces many responses and most people just coped with 9/11 in their individual ways.

Performance-Based Regulation: Prospects And Limitations In Health, Safety And Environmental Protection, Cary Coglianese, Jennifer Nash

All Faculty Scholarship

Regulation aims to improve the performance of individual and organizational behavior in ways that reduce social harms, whether by improving industry's environmental performance, increasing the safety of transportation systems, or reducing workplace risk. With this in mind, the phrase "performance-based regulation" might seem a bit redundant, since all regulation should aim to improve performance in ways that advance social goals. Yet regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation's goal into the …

Law School Branding And The Future Of Legal Education., Michael Ariens

St. Mary's Law Journal

It is too early to determine if law school branding will have a positive or a negative effect on legal education. A recent shift in legal education has led law schools to consciously brand themselves, claiming an educational distinctiveness in selling their services to consumers. Branding is an attempt to create a desire in targeted prospective students to join the branded law school. Although a law school may brand itself by claiming it delivers an excellent legal education, branding is about distinctiveness, not quality. Law schools have used a number of approaches to attract students, including aggressive marketing of a …

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants., Donna F. Coltharp

St. Mary's Law Journal

Cases prosecuted under 8 U.S.C. §1324 present special challenges for the Government and for defendants. Under §1324, it is a crime to transport or smuggle aliens into the United States. Prosecuting transporters or smugglers may present a challenge if a witness is unavailable. Even though transporting or smuggling always has witnesses—the alien(s) who hired the smuggler or transporter—not all witnesses have prolonged detentions, and some are returned to their native country. The transporter or smuggler may then assert their Sixth Amendment right. The Sixth Amendment’s Confrontation Clause requires that in all criminal prosecutions, the accused shall enjoy the right to …

Terrorism, Grand Juries, And The Federal Material Witness Statute., Roberto Iraola

St. Mary's Law Journal

Abstract Forthcoming.

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

Separation V. Patriotism: Expelling The Pledge From School., Bill W. Sanford Jr.

St. Mary's Law Journal

Abstract Forthcoming.

When Parents And Educators Clash: Are Special Education Students Entitled To A Cadillac Education., Judith Deberry

St. Mary's Law Journal

Due to the ambiguous language of the Individuals with Disabilities Education Act (IDEA), there is uncertainty concerning IDEA’s requirements. IDEA mandates that all school districts receiving federal education monies provide for the education of disabled students. According to IDEA, each state must provide disabled children with “free appropriate public education” (FAPE) that emphasizes special education and related services designed to meet the student’s unique needs and prepare him or her for employment and independent living. Parents have argued that IDEA requires school districts to compensate them for commercial programs and private school costs. Courts have held that an individual education …