Health Law and Policy Commons^™

The Power Of Myth: A Comment On Des Rosiers' Therapeutic Jurisprudence And Appellate Adjudication, Edward A. Dauer

Seattle University Law Review

In the American legal system, the myths surrounding judicial decision-making may pose significant impediments to achieving therapeutic jurisprudence. Courts, we are taught, are confined to the preexisting law, applying it to the conflict as the law itself requires that the conflict be framed. This is, in many ways that matter, a belief system that is not conducive to the therapeutic jurisprudence way.

Bajakajian: New Hope For Escaping Excessive Fines Under The Civil False Claims Act, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Searching For The Holy Grail: The Human Genome Project And Its Implications , Allison Morse

Journal of Law and Health

This Paper will explore the ethical considerations of the reductionist paradigm that the Human Genome Project represents, and analyze how this paradigm affects our political institutions, our family relationships, and even our identity. Part Two will provide the scientific background for a discussion of the Human Genome Project. It will begin by defining two competing theoretical constructs scientists use when exploring biological phenomenon: reductionism and organism. This Part will then offer a rudimentary explanation of how genes function. Yet even this rudimentary explanation illustrates the complexity involved in the functioning of genes, leaving the reductionist notions of genes as the …

Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This Article begins, in Part I, with a brief review of the past four decades" of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as "psychiatric testimony"). Although this review cannot be called comprehensive, it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such "nontraditional" expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content …

Teen Prostitution In Japan: Regulation Of Telephone Clubs, Andrew D. Morrison

Vanderbilt Journal of Transnational Law

The history of prostitution in Japan may be traced to the eighth century. Originally, prostitutes carried on their trade individually and independently. Around the thirteenth century, however, the nature of prostitution changed, as prostitutes formed small enterprises located in red-light districts. By the seventeenth century, red-light districts existed throughout Japan.

In 1900, the Japanese government, realizing the widespread proliferation of the prostitution industry, passed the Regulation for Control of Prostitutes. The law regulated prostitution nationwide by requiring prostitutes to register with local government authorities and to undergo regular health inspections. This system continued until the end of World War Two, …

The Limits Of Advance Directives: A History And Assessment Of The Patient Self-Determination Act, Edward J. Larson, Thomas A. Eaton

Scholarly Works

In this article, Professors Larson and Eaton assess the merits and shortcomings of the Patient Self-Determination Act. The article first traces the legislative history and policy behind the Act. The article then traces and analyzes many of the empirical studies designed to assess the Act and the Act's effect on the use of advance directives. The authors determine that the Act has been, at best, a "modest success." They conclude that the use of advance directives will remain limited and that alternative methods of providing for health treatment decisions, such as empowering physicians to act on incompetents' behalf, will have …

Controlling Infectious Diseases, David P. Fidler, William Lane Porter

Articles by Maurer Faculty

No abstract provided.

Facilitating Choice: Judging The Physician's Role In Abortion And Suicide, George J. Annas

Faculty Scholarship

When I was invited to give this talk I thought, "I'll just give my standard slide show on death in America." I thought I would just talk about the right to die, something I can do in my sleep, and everybody would be happy. And you probably would, since it's a pretty good speech. I am going to give it at a Pennsylvania Judges Conference in a couple of weeks, and they will like it. But it is not very challenging, either for me or for you. So, what I want to explore with you today is how judges have …

Health Care Advance Directives: The Next Generation, Linda S. Whitton

Law Faculty Publications

No abstract provided.

A Proposal For A Federal Aids Immunization Policy, Catherine M. Polizzi

Journal of Law and Health

This paper will examine the creation of a federal AIDS compensation scheme for victims of injuries caused by vaccines which are distributed as a part of a national immunization program. As a preliminary inquiry, I will examine the impact of perceived liability on potential manufacturers to determine whether the risk of liability for manufacturers decreases the possibility that a successful AIDS vaccine will be introduced into the market. I will then discuss whether, given the present laws and economic incentives surrounding the vaccine industry, a federal compensation scheme for an AIDS vaccine is necessary. After analyzing the unique problems of …

Human Health Risk Assessments For Superfund, W. Kip Viscusi, James T. Hamilton

Vanderbilt Law School Faculty Publications

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is scheduled for reauthorization in the spring of 1995, and Congress must decide either to continue the Superfund program in its current form or to modify it in some manner. Congress cannot sensibly decide how to reauthorize CERCLA without understanding the program's progress toward one of its fundamental missions: the reduction of risks to human health and the environment from uncontrolled hazardous waste sites... This article is structured in six sections. Section I provides background on how risk assessment data are used at Superfund sites.Section II details the construction and organization …

Unequal Racial Access To Kidney Transplantation, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

The Need For A Process Theory: Formulating Health Policy Through Adjudication, Margaret G. Farrell

Journal of Law and Health

This essay sets out a preliminary, theoretical framework within which to analyze remedial options and begin the search for the values they promote. It is based on the premise that the process used to enforce substantive rights to health care should promote values that are consistent with, and even supportive of, the values that health care reform itself would promote. The framework proceeds upon an analysis of the kinds of claims at issue, the alternative decision making models available to settle them, and the forums in which those models might be used. In conclusion, I urge scholars, policy makers and …

Book Review: An Overview Of Health Care Reform: A View Of The Forest--An Introduction To Taft Strategic Atlas: U.S. Health Care Reform By Frederick I. Taft, Stephen J. Werber, Stephen R. Smith

Law Faculty Articles and Essays

Those interested in health law, who wish to follow and participate in the national debate, need a method of organizing the trees of definition, individual issues, and plans found in the forest of the debate. The cliche of not seeing the forest for the trees is reversed in this debate as we all can see the forest, but we cannot distinguish or truly discern its contents. To aid in understanding these issues, The Journal of Law and Health has taken the unusual step of reprinting a significant portion of a new book. The Editors believe that a traditional Book Review …

The Medicare And Medicaid Anti-Kickback Statute: Safe Harbors Eradicate Ambiguity, Durin B. Rogers

Journal of Law and Health

This Note will briefly explore the history of the Medicare and Medicaid programs including the introduction of the PPS. Next, the Note will detail the legislative history surrounding the adoption of the MMAKS and the judicial interpretation applied to its elements. The Note will follow with an analysis of the purpose, goals, and disagreements relating to the MMPPPA's "Safe Harbor" regulations, resolving their alleged ambiguity against the medical profession. Finally, the Note will advocate support of the recently proposed Health Care Cost Containment and Reform Act of 1992 with emphasis on increasing the budget and size of the staff within …

Tobacco Proves Addictive: The European Community's Stalled Proposal To Ban Tobacco Advertising, Jennifer A. Lesny

Vanderbilt Journal of Transnational Law

This Note examines the recent initiative to ban tobacco advertising within the European Community. The Note first addresses the European Commission's proposed directive, exploring the Commission's stated justifications as well as the opposing member states' procedural and legal objections. This Note then analyzes the European Community debate by comparing it to the United States movement to ban tobacco advertising. The author concludes that, like its United States counterpart, the European proposal is ill-fated, and that failure to reach a consensus on controversial proposals such as the tobacco advertising ban seriously undermines completion of a true internal market envisioned in the …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION

By W. Michael Reisman

Durham and London: Duke University Press, 1992. Pp. 174.

LEGISLATIVE RESPONSES TO TOBACCO USE

By World Health Organization Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991.Pp. 226.

IMPORT AND CUSTOMS LAW HANDBOOK

By Michael J. Horton

New York, New York: Quorom Books, 1992. Pp. 308. $55.00.

THE LAW AND ECONOMIC DEVELOPMENT IN THE THIRD WORLD

Edited by P. Ebow Bondzi-Simpson

New York, New York: Praeger Publishers 1992. Pp. 200. $49.95.

Evaluating Ethics Committees: What Do We Mean By Success?, Gail J. Povar

Maryland Law Review

No abstract provided.

Symposium: Hospital Ethics Committees And The Law - Introduction, Paula C. Hollinger

Maryland Law Review

No abstract provided.

Regulating Ethics Committees In Health Care Institutions—Is It Time?, Diane E. Hoffmann

Maryland Law Review

No abstract provided.

Ethics Committees And Due Process: Nesting Rights In A Community Of Caring, Susan M. Wolf

Maryland Law Review

No abstract provided.

Institutional Ethics Committees: Proceed With Caution, Jonathan D. Moreno

Maryland Law Review

No abstract provided.

The Bioethics Movement And Hospital Ethics Committees, John C. Fletcher

Maryland Law Review

No abstract provided.

The Long Dying Of Nancy Cruzan, George J. Annas

Faculty Scholarship

With the Nancy Cruzan decision, ¹ the post-Reagan Supreme Court continued recreating America's legal landscape by transferring traditional rights from its citizens to state legislatures and state officials. Attorneys Bopp and Marzen see Cruzan as a cause for celebration. ² The more common view is that it is a hollow acceptance of the technological imperative that requires all Americans to engage in extensive damage control. Given the composition of the Court, constituted by President Ronald Reagan to overrule Roe v. Wade, Bopp and Marzen correctly note that the result in Cruzan was "practically inevitable." But its inevitability does not …

Medical Peer Review, John D. Blum

Journal of Legal Education

No abstract provided.

Informed Consent In The Post-Modern Era, Wendy K. Mariner

Faculty Scholarship

The doctrine of informed consent' is intended to get physicians to talk to their patients so that patients can make reasonably knowledgeable choices about whether to undergo particular forms of medical care. Although the law has long prohibited treatment without the patient's consent,² physicians have resisted the idea that treatment decisions ultimately are for the patient to make. Only recently have physicians been willing to disclose information about the benefits and risks of recommended therapies. ³ Even with the best of intentions, however, the discussions that do take place are often far from the law's ideal of reasonable disclosure …

Doctor-Patient Confidentiality Versus Duty To Warn In The Context Of Aids Patients And Their Partners, Judith C. Ensor

Maryland Law Review

No abstract provided.

Surrogate Parenthood, George J. Annas, John Robertson

Faculty Scholarship

Does a surrogate mother have the right to change her mind? Not according to the Baby M court, which enforced a $10,000 contract between Mary Beth Whitehead and William and Elizabeth Stern that it found was "in the best interests of the child." The decision is now on appeal before the New Jersey Supreme Court.

The case has produced sharply divided reaction-some denounce surrogate arrangements as Orwellian while others see them as a boon to childless couples.

George Annas, a professor of health law at Boston University's School of Public Health, would void these contracts on policy grounds. He believes …

Competitive Reform In Health Care: The Vulnerable Revolution, Thomas L. Greaney

All Faculty Scholarship

This article, written at the dawn of the era of "competitive reform" in health care examines the case and prospects for the introduction of competition in health care delivery and financing. It observes the failures of the ancienne regime of fee for service payment and professional sovereignty and discusses the benefits of market-oriented policy. Its contribution, still salient today, is the lesson that competition cannot succeed without regulation. It identifies legislative, professional, and cultural hurdles to effective implementation of competitive norms and policies that have impeded the success of competition policy in health care.

Regulating Heart And Liver Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the United States. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal in nature, and thus neither are the solutions. Heart and liver transplants are extreme and expensive medical interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant …