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2005

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Institution
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Articles 241 - 270 of 307

Full-Text Articles in Health Law and Policy

Neurocops: The Politics Of Prohibition And The Future Of Enforcing Social Policy From Inside The Body , Richard Glen Boire Jan 2005

Neurocops: The Politics Of Prohibition And The Future Of Enforcing Social Policy From Inside The Body , Richard Glen Boire

Journal of Law and Health

Over the next decade an increasing number of new "pharmacotherapy" medications will become available with the potential to tremendously impact the use and abuse of illegal drugs and the overall direction of national and international drug policy. These pharmacotherapy medications are designed to block or significantly reduce the "highs" elicited by illegal drugs. Used as part of a drug treatment program, pharmacotherapy medications may provide valuable assistance for people voluntarily seeking a chemical aid in limiting or eliminating the problem drug use. However, the tremendously politicized nature of the "drug war" raises substantial concerns that, in addition to those who …

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Pregnant Women Inmates: Evaluating Their Rights And Identifying Opportunities For Improvements In Their Treatment, Kelly Parker Jan 2005

Pregnant Women Inmates: Evaluating Their Rights And Identifying Opportunities For Improvements In Their Treatment, Kelly Parker

Journal of Law and Health

Pregnant women incarcerated at the time of our nation's founding faced the prospect of giving birth in their cells alone and a considerable likelihood that their infants would die. This is somewhat unsurprising. At this time infant mortality rates were high. Given the pace of advances in the treatment of pregnant women since that time, one might expect that the experience of pregnant women incarcerated in today's correctional facilities would have improved as it has for their peers on the outside. That, however, would be an unrealistic assumption. In addition to facing decidedly substandard environments in some facilities - inappropriate …

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One And Done: How Ohio's One-Year, Nonrenewable Visiting Medical Faculty Certificate Is Harming The State's Economic Recovery, Austin Mcguan Jan 2005

One And Done: How Ohio's One-Year, Nonrenewable Visiting Medical Faculty Certificate Is Harming The State's Economic Recovery, Austin Mcguan

Journal of Law and Health

As this hypothetical illustrates, the one-year, nonrenewable Visiting Faculty Certificate harms Ohio. Not only does it drive highly-qualified doctors from the state, but it also discourages them from coming to Ohio. In recent years, Ohio has lost thousands of jobs as major corporations and government entities have left the state, but it also discourages them from coming to Ohio. In recent years, Ohio has lost thousands of jobs as major corporations and government entities have left the state. Meanwhile, Ohio has been trying to correct this trend by taking advantage of its universities, world-class hospitals, and research centers and moving …

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The Current State Of Advance Directive Law In Ohio: More Protective Of Provider Liability Than Patients Rights, Marie Ortman Jan 2005

The Current State Of Advance Directive Law In Ohio: More Protective Of Provider Liability Than Patients Rights, Marie Ortman

Journal of Law and Health

Ohio has adopted the Modified Uniform Rights of the Terminally Ill Act which governs the use and execution of written advance directives as expressions of a patient's desire to consent to or refuse future medical treatment. However, the Act also includes a provision that grants both civil and criminal immunity to health care providers who do not comply with a person's written advance directive. Unfortunately, because of the grant of civil and criminal immunity encompassed within the adopted written advance directive statutes, Ohio law today does not afford any greater protection of a patient's right to refuse medical treatment at …

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Determining The Indeterminate Defect., J. Gregory Marks Jan 2005

Determining The Indeterminate Defect., J. Gregory Marks

St. Mary's Law Journal

Abstract Forthcoming.

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Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso Jan 2005

Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso

St. Mary's Law Journal

In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …

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Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman Jan 2005

Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman

St. Mary's Law Journal

Abstract Forthcoming.

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Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost Jan 2005

Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost

St. Mary's Law Journal

The split amongst Texas officials regarding how to address the growing problem of enforcing environmental laws can most clearly be seen in the legislation surrounding environmental crimes. The most notable aspect of the 2003 amendment to the Texas Water Code (TWC) requires permission from the Texas Commission on Environmental Quality (TCEQ) before criminal charges may be brought against permit holders for criminal violations. The purpose of TCEQ’s administrative penalties is to focus primarily on pushing companies into compliance with the code. Yet, the TWC amendment brings the entire spectrum of polluters, from corporate dumpers to individual litterbugs, under its primary …

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Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba Jan 2005

Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba

St. Mary's Law Journal

The unpredictability of court decisions on covenants not to compete is an attorney’s nightmare in Texas. The Texas Supreme Court's decision in Light v. Centel Cellular (Light II), holding that trade secrets may serve as independent consideration for a valid covenant not to compete, has only exacerbated the situation. Currently, attorneys and clients alike are at the mercy of judicial unpredictability. Texas courts have managed to muddle their own underlying public policy on covenants not to compete with trade secrets. During the years preceding Light II, Texas courts consistently struck a balance between the legitimate rights of employers to protect …

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Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl Jan 2005

Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl

St. Mary's Law Journal

Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …

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Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle Jan 2005

Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle

St. Mary's Law Journal

The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …

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Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom Jan 2005

Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom

St. Mary's Law Journal

In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …

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The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan Jan 2005

The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan

St. Mary's Law Journal

Often, the validity of a will is called into question in situations where the testator failed to execute the will in compliance with statutory formalities, although the intent to create a will was present. In Texas, harmless errors in the execution of a will are not excused, and the testator must comply with the statutory formalities set out in the Probate Code. Strict judicial adherence to statutory formalities leads to unjust results in situations where it is relatively clear that the testator intended to create a will but failed to comply with the execution requirements. The failure to comply with …

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Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris Jan 2005

Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris

St. Mary's Law Journal

Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …

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Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore Jan 2005

Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore

St. Mary's Law Journal

The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …

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The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long Jan 2005

The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long

St. Mary's Law Journal

While few in the legal profession would refer to clients as “property”, it is difficult to think some lawyers do not believe they possess something similar to property rights in their retainer agreements with clients. Not surprisingly, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully “stolen” a client or otherwise interfered with the attorney’s “property.” Courts have traditionally been reluctant to hold attorneys liable for litigation conduct that results in harm to adversaries or their attorneys. Plaintiff-attorneys generally have a better chance of succeeding when they complain that another attorney—while …

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Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow Jan 2005

Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow

St. Mary's Law Journal

Legal malpractice jurisprudence is a dynamic and evolving area of Texas law. In its evolution, many issues have arisen regarding potential areas for attorney liability and discipline. The Texas Supreme Court opinion in Alexander v. Turtur & Associates, Inc. discusses the “suit within the suit” requirement for causation in litigation malpractice cases. The case also raised an important question—whether and in what circumstances causation should be treated as a question of law for the trial judge in the malpractice case, rather than as a question of fact for the jury. The Alexander opinion suggests that both the jury submission issues …

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The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone Jan 2005

The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone

St. Mary's Law Journal

Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could …

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Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley Jan 2005

Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley

St. Mary's Law Journal

Abstract Forthcoming.

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Electronic Discovery: Not Your Father's Discovery., Howard L. Speight, Lisa C. Kelly Jan 2005

Electronic Discovery: Not Your Father's Discovery., Howard L. Speight, Lisa C. Kelly

St. Mary's Law Journal

This Article examines recent developments in several areas of electronic discovery. It discusses spoliation, cost shifting, form of production, and recent developments in the case law. Additionally, this Article discusses the Texas Rules of Civil Procedure, revisions to the Federal Rules of Civil Procedure and local rules, as well as recommendations of the American Bar Association (ABA) regarding electronic discovery. In Zubulake v. UBS Warburg LLC, I-VI, Judge Scheindlin of the Southern District of New York, set out her vision for the management of electronic discovery. It is a sobering vision, with clarified responsibilities for counsel. Increasing the role of …

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The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie Jan 2005

The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie

St. Mary's Law Journal

Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …

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Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer Jan 2005

Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer

St. Mary's Law Journal

In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …

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Securing One's Fourth Amendment Rights Through Issue Preclusion: Assessing Texas's Application Of Collateral Estoppel To Multiple Suppression Motions Filed In Separate Courts., Garrett T. Reece Jan 2005

Securing One's Fourth Amendment Rights Through Issue Preclusion: Assessing Texas's Application Of Collateral Estoppel To Multiple Suppression Motions Filed In Separate Courts., Garrett T. Reece

St. Mary's Law Journal

This Comment will assess the split in Texas courts over the issue of collateral estoppel’s application in different motion to suppress hearings. By placing collateral estoppel within the confines of the Double Jeopardy Clause, federal law essentially extinguished one form of collateral estoppel and invented another form of the doctrine. Remnants of both forms are still alive, however, and Texas is one state in which both forms of collateral estoppel may be invoked in a criminal proceeding. Part II provides a historical analysis of the exclusionary rule, Double Jeopardy Clause, and collateral estoppel’s rise in criminal court. Part III addresses …

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Preemption And Regulatory Failure, David C. Vladeck Jan 2005

Preemption And Regulatory Failure, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

This symposium was convened to address the growing and seemingly conflicting jurisprudence governing federal preemption of state damage actions. One way to evaluate the evolution of preemption law is to examine it through the lens of litigation under the preemption provision of the 1976 Medical Device Amendments ("MDA") to the federal Food, Drug, and Cosmetic Act - a provision that in many respects is typical of express preemption provisions in regulatory statutes and has spawned a high volume of litigation. The question raised in cases under the MDA is whether the Act's preemption provision nullifies state damage actions based on …

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From International Sanitary Conventions To Global Health Security: The New International Health Regulations, David P. Fidler Jan 2005

From International Sanitary Conventions To Global Health Security: The New International Health Regulations, David P. Fidler

Articles by Maurer Faculty

In May 2005, the World Health Organization adopted the new International Health Regulations (IHR), which constitute one of the most radical and far-reaching changes to international law on public health since the beginning of international health cooperation in the mid-nineteenth century. This article comprehensively analyses the new IHR by examining the history of international law on infectious disease control, the IHR revision process, the substantive changes contained in the new IHR and concerns regarding the future of the new IHR. The article demonstrates why the new IHR constitute a seminal event in the relationship between international law and public health …

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Unintentional Franchising., Mark H. Miller Jan 2005

Unintentional Franchising., Mark H. Miller

St. Mary's Law Journal

The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.

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Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion Jan 2005

Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion

St. Mary's Law Journal

The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …

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Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg Jan 2005

Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg

St. Mary's Law Journal

The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …

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Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice Jan 2005

Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice

St. Mary's Law Journal

Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …

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Reaching Disclosure, Carl E. Schneider Jan 2005

Reaching Disclosure, Carl E. Schneider

Articles

It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method-requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insists that researchers warn subjects of the risks of experiments. The Patient Self-Determination Act compels medical institutions to remind patients about advance directives. The federal government's new privacy regulations instruct medical institutions to describe their privacy regime to patients. Not just the law of bioethics, but health law …

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