Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 21 of 21
Full-Text Articles in Law
The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman
The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman
Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman
The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
This article will expand upon the feminist critique by focusing on children's health as well as the health and liberty interests of their mothers. In the first part of this article, I examine the legal and cultural underpinnings of “fetal protection” and explore its current manifestations. In the second part, I place “fetal protection” in a broader context, documenting the ways in which American law currently promotes fetal life, while simultaneously neglecting the lives and health of born children. The third part of the article offers concrete recommendations about how government, both state and federal, can actually achieve the goal …
The Modern Age Of Informed Consent, Barbara L. Atwell
The Modern Age Of Informed Consent, Barbara L. Atwell
Elisabeth Haub School of Law Faculty Publications
This essay explores the informed consent ramifications of the confluence of these two phenomena: developments in medical technology and emerging adulthood. In particular, it explores consent to medical treatments by emerging adults that are both elective and irreversible. In such cases, policy considerations dictate that additional safeguards be implemented to ensure that the consent given is truly informed. Part II of this essay provides an overview of the informed consent doctrine and outlines a variety of advancements in elective medical technology. Part III explores the concept of emerging adulthood. Part IV suggests that when emerging adults seek medical treatments that …
Public Health And The Law: Responding To Terrorism And Other Public Health Emergencies In New York, Mark R. Shulman
Public Health And The Law: Responding To Terrorism And Other Public Health Emergencies In New York, Mark R. Shulman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Mainstreaming Complementary And Alternative Medicine In The Face Of Uncertainty, Barbara L. Atwell
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 …
A Distance Education Primer: Lessons From My Life As A Dot.Edu Entrepreneur, Linda C. Fentiman
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.
The Case Of The Male Ob-Gyn: A Proposal For Expansion Of The Privacy Bfoq In The Healthcare Context, Emily Gold Waldman
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 …
Patient Advocacy And Termination From Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, Linda C. Fentiman
Patient Advocacy And Termination From Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
This article will explore the history, implementation, and impact of state advocacy protection statutes. The article is in four major parts. The first Part provides an introduction to the concept of advocacy, both as it was understood at common law, and as it is presently interpreted by HCPs and MCOs. The article will also examine the phenomenon of HCPs' “deselection,” that is, the termination or non-renewal of their contracts with MCOs. In this context, the article will highlight the distinction between anecdote and data and emphasize the paucity of hard evidence to support either side's version of the truth about …
Internet Pharmacies And The Need For A New Federalism: Protecting Consumers While Increasing Access To Prescription Drugs, Linda C. Fentiman
Internet Pharmacies And The Need For A New Federalism: Protecting Consumers While Increasing Access To Prescription Drugs, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
In this article I will argue that Internet pharmacies pose a significant public health problem, as they raise the classic eternal triangle of health care issues--access, quality, and financing--in a new technological context. Part II describes the phenomena of Internet pharmacies, and Part III reviews the present regulatory scheme. Part IV explains why the current legal framework is inadequate to address the public health and safety problems posed by Internet pharmacies, focusing particularly on the jurisdictional, constitutional, and practical obstacles to effective state oversight of Internet pharmacies. Part V argues that comprehensive federal oversight of Internet prescribing and dispensing is …
Criminal Prosecution For Hmo Treatment Denial, John A. Humbach
Criminal Prosecution For Hmo Treatment Denial, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This article will first provide a brief examination of the economic pressures that market forces bring to bear on HMOs and their decision-making personnel. The objective is to show how the natural effect of normal market forces is to exert a constant pressure towards treatment delays and denials, particularly in the cases of elderly and chronically ill patients. Part III will provide an overview of the existing criminal law as it applies to situations in which death results because someone has violated a legal duty to provide medical treatment. In Part IV, the question of the requisite mental culpability will …
Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman
Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Health Care Access For Children With Disabilities, Linda C. Fentiman
Health Care Access For Children With Disabilities, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
In the last twenty-five years, we have seen a remarkable evolution in attitudes and practice toward the treatment of children with disabilities. Children born with severe physical and mental anomalies are no longer routinely allowed to die. Many such children, along with those who become disabled later in childhood through illness or injury, receive aggressive life-saving medical treatment as well as continuing medical and habilitative care. Some children, particularly those whose families are affluent, receive substantial therapeutic and other supportive services that permit them to overcome their disabilities and function effectively in school and, later, at work.
Checkpoints On The Conversion Highway: Some Trouble Spots In The Conversion Of Nonprofit Health Care Organizations To For-Profit Status, James J. Fishman
Checkpoints On The Conversion Highway: Some Trouble Spots In The Conversion Of Nonprofit Health Care Organizations To For-Profit Status, James J. Fishman
Elisabeth Haub School of Law Faculty Publications
This essay does not address the truly important policy issues: whether for-profit healthcare should be allowed or encouraged; how the quality of care compares to nonprofits or what criteria should be used to evaluate the quality of care; or what the impact of these conversions is on the communities they serve. It discusses less significant issues: those of process—how can we shape and control this tidal wave of change so that the public will be served and charitable assets preserved to the maximum extent possible? The focus is upon the valuation of these charitable assets; the appropriate process of conversion; …
Aids As A Chronic Illness: A Cautionary Tale For The End Of The Twentieth Century, Linda C. Fentiman
Aids As A Chronic Illness: A Cautionary Tale For The End Of The Twentieth Century, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
The result of the monumental shifts in the structure and financing of health care delivery is that at the very time that medical innovations have made possible significant improvements in the quality and quantity of life for people with chronic illnesses, those who are responsible for paying for Americans' health care, in government and the private sector, seem to have finally said “Enough! We must cut costs, and cut them dramatically, and the simplest, most direct way of cutting costs is to deny coverage for certain kinds of treatments and certain kinds of illnesses.” People with HIV and AIDS are …
The Utility Of International Law For Protecting Women's Health Rights, Vanessa Merton
The Utility Of International Law For Protecting Women's Health Rights, Vanessa Merton
Elisabeth Haub School of Law Faculty Publications
There is one area, however, where international law seems to hold promise; certain cultural practices that pose special, direct threats to the lives and health of women (although male infants and children often share women's vulnerability in this regard). I have in mind sexual slavery, coercive prostitution and pornographic exploitation, rape, compulsory marriage, coerced impregnation and its converse, coerced abortion and sterilization; spousal abuse, dowry deaths and coerced suicide, female infanticide and sex-specific abortion. All of these practices are the product not of microbes, poor hygiene, or a lack of health care, but of deliberate human behavior. All these practices …
Organ Donation As National Service: A Proposed Federal Organ Donation Law, Linda C. Fentiman
Organ Donation As National Service: A Proposed Federal Organ Donation Law, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
It is time to consider an alternative approach to organ procurement and allocation -- one that relies on presumed consent to organ donation, combined with incentives which recognize the communal basis of the obligation to donate one's organs after death. Such a system must provide numerous opportunities for “opting out” of donation in order to promote individual autonomy and use economic and eleemosynary incentives for persons to contribute their organs after death. Mere mention of the words “presumed consent” and “compensated donation” may raise ethical eyebrows. However, a system of presumed consent to compensated organ donation should be considered as …
Review Of Families And The Gravely Ill: Roles, Rules, And Rights, Vanessa Merton
Review Of Families And The Gravely Ill: Roles, Rules, And Rights, Vanessa Merton
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Privacy And Personhood Revisited: A New Framework For Substitute Decisionmaking For The Incompetent, Incurably Ill Adult, Linda C. Fentiman
Privacy And Personhood Revisited: A New Framework For Substitute Decisionmaking For The Incompetent, Incurably Ill Adult, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
This Article is thus an exploration of the essentials of the human personhood in community, both the intimate community of family and close friends and the larger, more impersonal community of hospitals and health care providers, courts, legislatures, and lawyers. After undertaking an analysis of the sources of the autonomy model for decisionmaking in this area and the negative consequences of an exclusive reliance on that model, this Article will propose a new moral, legal, and medical framework for making medical treatment decisions for incompetent incurably ill adults. This model both provides maximum opportunities for each individual to determine for …
Review Of The Reign Of Error: Psychiatry, Authority, And Law, Linda C. Fentiman
Review Of The Reign Of Error: Psychiatry, Authority, And Law, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
Abroad In The Land: Legal Strategies To Effectuate The Rights Of The Physically Disabled, Ann Powers
Abroad In The Land: Legal Strategies To Effectuate The Rights Of The Physically Disabled, Ann Powers
Elisabeth Haub School of Law Faculty Publications
In view of limited legislative action, the handicapped may be forced to resort to the courts in order to vindicate their rights. To do so, they must develop new legal strategies by using existing theories in previously unexplored ways. This Note will consider the development of such strategies in the areas of education, physical access and employment.