Health Law and Policy Commons^™

At Issue: Should Active Euthanasia Be Legalized?, Yale Kamisar, Cheryl K. Smith

Articles

The distinction between letting people die and killing them by lethal injection is now an integral part of the medico-legal landscape. This is the compromise we have arrived at in the struggle to take a humane approach toward seriously ill patients while still preserving as many traditional restraints against killing as we possibly can. This may be neither the logician's or the philosopher's way, but it may nevertheless be a defensible pragmatic way to do so.

J.E.B. V. Alabama Ex Rel. T.B.: Excellent Ideology, Ineffective Implementation., Nancy J. Cutler

St. Mary's Law Journal

Abstract Forthcoming.

The Size Of A Government Body Is Not Subject To A Vote Dilution Challenge Under Section 2 Of The Voting Rights Act Of 1965., Peter J. Beverage

St. Mary's Law Journal

In Holder v. Hall, the Court held the size of a government body is not subject to a vote dilution challenge under Section 2 of the Voting Rights Act of 1965. The Act consists of two primary components, Sections 2 and 5, designed to eliminate and prevent subtle voting practices and procedures utilized to obstruct minority voter participation. Section 5 requires states with a history of discriminatory voting practices to obtain federal preclearance before changing a voting standard, practice, or procedure. Section 2 addresses the existing methods utilized to deny or abridge a citizen’s right to vote.  In Holder, the …

Did We Treaty Away Ker-Frisbie Symposium - Human Rights In The Americas., Timothy D. Rudy

St. Mary's Law Journal

This Article explores whether U.S. ratification of the International Covenant on Civil and Political Rights (Civil and Political Covenant) provides the American judiciary with reason to jettison the Ker-Frisbie doctrine. If the United States does not forego use of the Ker-Frisbie doctrine the country will violate its international obligations arising from a major human rights treaty. Part II discusses the customary norm of international law which forbids—and the American rule which permits—forcible abductions overseas. It also reviews whether extraterritorial abductions violate customary international law. Part III discusses applicability of the Civil and Political Covenant to the Ker-Frisbie doctrine and details …

Chief Justice Calvert, Our Highly Regarded Of Counsel In Memoriam., Lloyd Lochridge

St. Mary's Law Journal

Abstract Forthcoming.

The Natural Law Tradition On The Modern Supreme Court: Not Burke, But The Enlightenment Tradition Represented By Locke, Madison, And Marshall., R. Randall Kelso

St. Mary's Law Journal

A traditional common-law style of judicial decisionmaking exists which was present at this nation’s founding. This common law style is derived from natural law tradition. And this tradition stands as an alternative to the formalism of Justice Scalia or the Holmesian style of Chief Justice Rehnquist. This natural law style, with its focus on the religious and communitarian ethical tradition, was the dominant view of judicial interpretation for the framing and ratifying generation of the original Constitution and the Civil War Amendments. The decisionmaking style of Justices O’Connor, Kennedy, and Souter appears to have great affinity with this traditional common-law …

Beauty And The Beast: Physical Appearance Discrimination In American Criminal Trials Comment., David L. Wiley

St. Mary's Law Journal

This Comment considers physical appearance discrimination by jurors in criminal trials. It proposes remedial measures to eliminate discrimination and effectuate the underlying purposes of jury trials. Part II of this Comment examines the psychological process of corporeal attribution and discusses the underlying philosophic dichotomy of image and substance. It surveys the role modern American culture plays in discrimination in the American criminal law system and discusses parallel relationships between race, sex, and physical appearance discrimination. Part IV explores constitutional ramifications of fostering and promoting physical appearance discrimination in criminal trials. Finally, Part V presents remedies designed to ensure criminal defendants …

Helping The Grim Reaper: Oregon's Measure 16 And Three Court Cases Put Assisted Suicide On A Fast Track To Supreme Court, Yale Kamisar, N. Schuyler, T. Balmer

Articles

Last November, Oregon's voters passed by initiative the first physician-assisted suicide law in the nation. Measure 16 authorizes physicians to prescribe lethal medicaiton for competent, terminally ill adults if they make three separate requests, wait 15 days to reconsider, and get a second medical opinion of their prognosis. The new law was challenged immediately on several legal grounds; plaintiffs have won a preliminary injunction, and arguments have been scheduled in cross motions for summary jugement. Lee v. Oregon (D Or. No. 94-6467-ITO).

The Oregon court's decision will mark the fourth time in the past year that the once-obscure issue of …

Local And Federal Statutory And Regulatory Bases For Preventing Lead Poisoning, Lucy Billings

Articles & Chapters

No abstract provided.

The Medicaid Cost Crisis: Are There Solutions To The Financial Problems Facing Middle-Class Americans Who Require Long-Term Health Care, Kenneth Hubbard

Cleveland State Law Review

Medicaid was originally designed as a welfare program to provide healthcare to the poor. Despite the initial intentions of Congress, Medicaid has instead become "a multi-billion-dollar insurance policy" for elderly middle-class Americans who require long-term health care. The Medicaid crisis has been described as "a battle between elderly people's desire for long-term care coverage and their concomitant reluctance to pay for it themselves." This battle is waged between the older and younger generations, commencing when the younger generation observes that their inheritance is growing smaller or disappearing altogether due to the immense cost of their parents' long-term health care.

The Nursing Profession In The 1990'S: Negligence And Malpractice Liability, Frank J. Cavico, Nancy M. Cavico

Cleveland State Law Review

Since expanded responsibility portends increased liability, a thorough understanding of the law must be achieved for nurses' rights to be adequately protected and for nurses to be held properly accountable for their legal obligations. This work examines the legal rights, responsibilities, and particularly the potential legal liability of the nurse, in the contexts of modem nursing practice and current statutes and case law. The work focuses on one major aspect of the nurse's legal liability -the tort, or civil wrong, of negligence.

Managed Care As Regulation: Functional Ethics For A Regulated Environment, Sandra H. Johnson

All Faculty Scholarship

Institutional context plays a substantive role in ethical analysis. Accordingly, efforts to apply the principles of bioethics generally and without regard for institutional context may prove difficult.

This article first addresses the aspects of two non-hospital settings - the managed care organization (MCO) and the nursing home - that make the application of hospital-derived principles of bioethics particularly difficult.

The article then considers health care providers’ complaints that extensive MCO regulations impede ethical decisionmaking and adequate care. MCO standards and regulations are value-based. Thus after identifying four categories of providers’ MCO complaints, this article evaluates the complaints under ethical norms. …

Opinion Letter As To The Patentability Of Certain Inventions Associated With The Identification Of Partial Cdna Sequences, Rebecca S. Eisenberg, Robert P. Merges

Articles

You have asked for our legal opinion on the patentability of inventions claimed in U.S. patent applications 07/716,831, filed June 21, 1991 (the '831 application, or .'831"), 07/837,195, filed September 25, 1992 ("'195"), and 07/952,911, filed February 12, 1993 (."911"), all filed in the name of Craig Venter and others and assigned to the National Institutes of Health "(NIH)." We understand that NIH has abandoned these patent applications and has no present intention of filing similar applications in the future, but that NIH remains interested in the patenting of human DNA sequences from a broader public policy perspective. We have …

Reply To Comments On The Patentability Of Certain Inventions Associated With The Identification Of Partial Cdna Sequences, Rebecca S. Eisenberg, Robert P. Merges

Articles

A brief reply is in order to clarify our position on the patenting of research tools. We stand by the statement that "there are reasons to be wary of patents on research tools," but that statement should not be understood as a broad condemnation of patents on research tools in all contexts. Indeed, immediately after the cited language our opinion letter acknowledges that withholding patent protection from research tools could undermine private incentives to develop research tools and to make them available to investigators or lead to greater reliance on trade secrecy. Unlike the government, which purports to pursue patent …

The Resurgent Tuberculosis Epidemic In The Era Of Aids: Reflections On Public Health, Law, And Society, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The resurgence of tuberculosis and the rise in drug-resistant cases is neither inexplicable nor unexpected, but rather is the predictable outcome of a complex configuration of biological, social, and behavioral factors that have converged in America over the past decade. This article examines the biological, social, and behavioral causes of the epidemic, and suggests a comprehensive public health strategy for curtailing tuberculosis and other infectious diseases. When thoughtfully conceived, public health strategies can be implemented that are consistent with the limitations that both constitutional law and disability law place on the authority of the state. While traditional concepts of public …

Carcinogen Regulation: Risk Characteristics And The Synthetic Risk Bias, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In this paper, I will explore the decision to regulate natural and synthetic chemicals. To what extent are regulatory decisions driven by the severity of the risk as opposed to the character of the risk exposure? The striking result is that the risk severity plays a very small role. Instead.it is whether the chemical is synthetic or natural that is the driving force behind regulatory decisions.

The Legality And Morality Of Using Deadly Force To Protect Unborn Children From Abortionists, Charles E. Rice, John P. Tuskey

Journal Articles

Is killing abortionists as they arrive at abortuaries to perform regularly scheduled abortions a legally justifiable use of force in defense of another person's life? Under commonly accepted criminal law principles of justification, a person normally is entitled to use force—even deadly force—when necessary to save a person's life from an aggressor bent on taking that life. But because Roe and its progeny have made abortion a constitutionally protected right, courts would predictably hold that using force against an abortionist is not legally justified, despite the fact that the motive for that force is to defend innocent human life.

Even …

Broken Back: A Patient's Reflections On The Process Of Medical Necessity Determinations, Margaret Gilhooley

Villanova Law Review (1956 - )

No abstract provided.

A Comment On "Constitutional Rights As Public Goods", Robert F. Nagel

Publications

Discussion of T. W. Merrill, Dolan v. City of Tigard: Constitutional Rights as Public Goods, 72 Denv. U. L. Rev. 859 (1995).

Refusals To Deal In "Locked-In" Health Care Markets Under Section 2 Of The Sherman Act After Eastman Kodak Co. V. Image Technical Services, James F. Ponsoldt

Scholarly Works

In the Kodak context, several common health care provider practices, previously challenged with varying results under traditional antitrust analysis, may be reexamined to focus upon the effect of refusals to deal in a secondary market with potential competitors in that secondary market. This Article focuses on three such practices: (1) the non-immunized revocation of hospital staff privileges for other than legitimate, quality-of-care motives; (2) the denial of hospital privileges to differentially credentialed, state-licensed providers; and (3) the closure of membership in comprehensive health care plans, such as preferred-provider organizations, combined with a refusal to deal with nonmembers. These practices should …

Active Supervision Of Health Care Cooperative Ventures Seeking State Action Antitrust Immunity, Joshua Rosenstein

Seattle University Law Review

Parts I and II of this Comment review the foundations of the state action doctrine and focus on the development of statutory and regulatory requirements of active supervision. Next, Part III discusses the two primary components of active supervision, control and involvement, in light of the current status of state action immunity. Part IV then examines Washington State's managed competition-based reform plan as an example of an attempt to secure state action immunity for private actors. Part IV also describes the Washington state action antitrust immunity provision in some detail. Finally, Part V provides a case illustration for effective state …

Insurance Risk Classification After Mcgann: Managing Risk Efficiently In The Shadow Of The Ada, Maria O'Brien

Faculty Scholarship

A significant part of the health insurance debate which gripped the country during the first two years of President Clinton's administration focused on the critical shortage of employer-sponsored health insurance for disabled, br high risk, employees. Indeed, President Clinton's promise of universal access in connection with the promotion of his health care plan is apparently designed to ensure that the increasingly popular employer practice of excluding high risk employees becomes obsolete. In the meantime, while the merits of the Clinton plan and its competitors are debated, individuals like John McGann-working and insured--continue to discover that like their health, their insurance …

Women And Children First, George J. Annas

Faculty Scholarship

In the lore of the sea there are few events that have so exemplified heroism and self-sacrifice as the acts of the soldiers and sailors of the British ship Birkenhead when it sank in 1852. The soldiers of the 74th Highland Regiment stood at attention on deck (with the band playing) “while the women and children were saved and the captain very properly went down with his ship.” More than 450 lives were lost, and the phrase “women and children first” was introduced into the language as part of the “Birkenhead drill.” As Kipling put it in his poem …

The Health Of The President And Presidential Candidates: The Public's Right To Know, George J. Annas

Faculty Scholarship

In July 1995, presidential candidate Robert Dole celebrated his 72nd birthday by releasing a detailed nine-page summary of his medical records. His personal physician told the press that despite the serious wounds Dole received during World War II, which left his right arm paralyzed and required the removal of one kidney, and despite his 1991 surgery for prostate cancer, his health was “excellent.” Dole was also photographed on his treadmill.

Medicine, Death, And The Criminal Law, George J. Annas

Faculty Scholarship

Errors in medicine are common and are at least partly responsible for the deaths of 180,000 patients a year. There is increasing concern about medical errors and the steps that should be taken to prevent them.Until recently, hospitals have addressed errors after the fact, through mortality and morbidity conferences, incident reports, and the like, rather than before the fact, through attention to systems defects and prevention. Likewise, medical-malpractice litigation can be filed only after an injury has occurred. Malpractice litigation is intended to create incentives to improve the quality of medical care by making physicians and hospitals accountable for their …

Reframing The Debate On Health Care Reform By Replacing Our Metaphors, George J. Annas

Faculty Scholarship

Metaphors matter, as our sterile debate on the fi-nancing of health insurance demonstrates so well. In that debate the traditional metaphor of American medicine, the military metaphor, was displaced by the market metaphor in public discourse. Metaphors, which entice us to understand and experience “one kind of thing in terms of another . . . play a central role in the construction of social and political reality.” The market metaphor proved virtually irresistible in the public arena and led Congress to defer to market forces to “reform” the financing of health insurance in the United States.