Law Commons^™

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

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 …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

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 …

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51, Gabriel O. Aitsebaomo

ExpressO

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

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 New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Ken Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan

ExpressO

Scientifically valid instruments are being used for the first time to assess an individual’s risk of violence in criminal sentencing and in the civil commitment of mental patients and sexual predators. Risk factors on these instruments pertain to what the person is (e.g., gender), what the person has (e.g., personality disorder), what the person has done (e.g., past violence), and what has been done to the person (e.g., past victimization). In this Article, I argue that in criminal law, with its emphasis on blameworthiness for actions taken, the admissibility of scientifically valid risk factors is properly constrained to those that …

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

ExpressO

The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

A Deadly Dilemma: The Failure Of Nations' Organ Procurement Systems And Potential Reform Alternatives, Christy M. Watkins

ExpressO

All countries throughout the world vary in the way they procure organs, but they all have one thing in common: there is a fatal organ shortage because all the systems countries have imposed have failed. No procurement system in the world has been successful. Therefore, new procurement systems need to be implemented and tested, particularly financial incentives or a regulated organ market, to remedy these unnecessary and preventable deaths. This paper will explore the failures of current organ procurement systems as well as alternative reform systems. Part II provides a brief overview of the history of organ transplantation. Part III …

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 …

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Mandatory Recall Authority: A Sensible And Minimalist Approach To Improving Food Safety, Michael T. Roberts

ExpressO

No abstract provided.

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 …

The Cocaine Vaccine, Dru Stevenson

ExpressO

The controversial new cocaine vaccine (TA-CD) has the potential to be an extremely effective treatment tool for recovering addicts, but it also presents opportunities for non-therapeutic uses, such as preventing cocaine use in the first place. It is foreseeable that the cocaine vaccine could become a condition of parole or probation, or receiving welfare payments, or for employment in certain occupations. Universal vaccination is also a possibility but less likely for political reasons. This article investigates each of these areas of potential use. Any setting where mandatory drug testing is currently in place could become a venue for the vaccination. …

Patent Wars In The Valley Of The Shadow Of Death: The Pharmaceutical Industry, Ethics And Global Trade, Uche Ewelukwa

ExpressO

No abstract provided.

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

The Poor State Of Health Care Quality In The U.S.: Is Malpractice Liability Part Of The Problem Or Part Of The Solution?, Charles Silver

ExpressO

The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm.

This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the …

Gay And Lesbian Rights To Procreate And Access To Assisted Reproductive Technology, John A. Robertson

ExpressO

No abstract provided.

Abstinence-Only Adolescent Education: Ineffective, Unpopular And Unconstitutional, James J. Mcgrath

ExpressO

This article examines the recent changes in the funding of “abstinence only” educational programs that attempt to reduce the incidence of teen pregnancy and sexually transmitted diseases. Although funding for these programs was previously ruled to be facially constitutional, this is no longer the case as their lack of efficacy for their stated purpose has been exposed. Newer programs are in direct violation of unconstitutional conditions doctrine, and none of these programs address a significant segment of the student population, lesbian and gay students. My article addresses this oversight as dangerous public health policy as well as a potential constitutional …

Invasion Of The Clones: Animal Cloning And The Potential Implications On The Future Of Human Cloning And Cloning Legislation In The United States, The United Kingdom, And Internationally, Adrienne N. Calhoun

ExpressO

Cloning is an area of science that changes daily; with advances being made constantly. This technology has caused great controversy in the United States and across the world. The issue has raised religious, ethical, technical and legal concerns. This paper is broken into four parts in order to best address the complex area of cloning technology. Part one will be a review of the history of the science of cloning and the history of animal cloning. Part two will be a discussion of the risks and benefits of cloning. Part three will address ethical and religious concerns surrounding human cloning. …

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, …

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

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

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 …

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

All Faculty Scholarship

No abstract provided.