Medical Jurisprudence Commons^™

Federalism And State Marijuana Legislation, Dean M. Nickles

Notre Dame Law Review

An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws.

Health Information And Data Security Safeguards, 32 J. Marshall J. Info. Tech. & Privacy L. 133 (2016), Jane Kim, David Zakson

UIC John Marshall Journal of Information Technology & Privacy Law

The healthcare industry possesses information coveted by cyber criminals. Unfortunately, healthcare providers are also among the most vulnerable and unprepared to deal with cyber attacks. The Introduction sets the background of this paper with cyber security statistics of the healthcare sector. Part A of this paper will discuss how new Russian law impacts global data security. Part B takes a broad look at data security safeguards. Part C focuses on U.S. attempts at safeguarding data through NIST and its Presidential Policy Directive. In Part D, the paper explores in greater detail causes that precipitate security breaches and specific security defenses …

Can Dna Be Speech?, Jorge R. Roig

Scholarly Works

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being. In this article we discuss myriad current and developing ways in which …

Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot), Sheila Wildeman

Articles, Book Chapters, & Popular Press

The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care …

A Hurdle Too High: The Unconstitutionality Of Mandatory Ultrasounds Under Casey's Undue Burden Standard, Katarzyna Kordas

Cardozo Journal of Equal Rights & Social Justice

The article argues that mandatory ultrasound laws impose an undue burden on women seeking abortions, violating the constitutional standard established in Planned Parenthood v. Casey. These laws, often enacted to dissuade women from proceeding with abortions, are deemed medically unnecessary and unconstitutional as they obstruct women's reproductive rights.

Between A Bed And A Hard Place: How Washington Can Keep Psychiatric Patients In Treatment And Off The Streets, Spencer Babbitt

Seattle University Law Review

On February 27, 2013, ten psychiatric patients were being involuntarily detained in hospital emergency departments located in Pierce County under Washington State’s Involuntary Treatment Act (ITA). Despite the name of the law that authorized their detainment, these individuals were not receiving any psychiatric treatment during their confinement. Nor were they there as the result of a criminal conviction. The only thing these ten detainees were guilty of was being mentally ill. Under what is now considered to have been a misinterpretation of the ITA, counties across Washington had for years been confining mentally ill patients in hospitals not certified to …

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Law, Bioethics, And Medical Futility: Defining Patient Rights At The End Of Life, Frederick R. Parker Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica Silbey

Faculty Scholarship

This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual technology by failing …

Public Health Regulation: Convergence, Divergence, And Regulatory Tension: An Asian Perspective, Locknie Hsu

Research Collection Yong Pung How School Of Law

Regulatory issues relating to public health, including regulation of access to medicines and tobacco control have increasingly been the source of tension in recent trade and investment negotiations, treaties and disputes. The ongoing Trans-Pacific Partnership negotiations, which include a number of developing Asian states, are an example that brings some of these issues to the fore and show a divergence of negotiating views.

The intersection between public health regulation and trade and investment treaties has given some Asian states significant pause for thought; it has further led the international system to a critical need to confront the overlap of legal …

Introduction: Mental Health, Psychology, And The Law, Mary Kay Kisthardt

Faculty Works

The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

Aging Populations And Physician Aid In Dying: The Evolution Of State Government Policy, David Orentlicher

Scholarly Works

Professor David Orentlicher explores the evolution of physician assisted suicide from illegal taboo to the passage of Death with Dignity legislation and caselaw.

Speech As A Weapon: Planned Parenthood V. American Coalition Of Life Activists And The Need For A Reasonable Listener Standard, Alex J. Berkman

Touro Law Review

No abstract provided.

The Independent Medicare Advisory Committee: Death Panel Or Smart Governing?, Robert Coleman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

California And Uncle Sam's Tug-Of-War Over Mary Jane Is Really Harshing The Mellow, Daniel Mortensen

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Moving Forward With A Clear Conscience: A Model Conscientious Objection Policy For Canadian Colleges Of Physicians And Surgeons, Jocelyn Downie, Jacquelyn Shaw, Carolyn Mcleod

Articles, Book Chapters, & Popular Press

In 2008, one of us (JD) together with the former Dean of Law at the University of Ottawa (Sanda Rodgers), wrote a guest editorial for the Canadian Medical Association Journal on the topic of access to abortion in Canada. In the editorial, we argued, among other things, that "health care professionals who withhold a diagnosis, fail to provide appropriate referrals, delay access, misdirect women or provide punitive treatment are committing malpractice and risk lawsuits and disciplinary proceedings." In response to a series of letters to the editor written about our editorial, we wrote that, under the CMA Code of Ethics …

The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson

Pepperdine Law Review

No abstract provided.

An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson

Pepperdine Law Review

No abstract provided.

Hodgson V. Minnesota: Chipping Away At Roe V. Wade In The Aftermath Of Webster, Selina K. Hewitt

Pepperdine Law Review

No abstract provided.

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.

Vaccines And The Law, Michael Sanzo Ph.D.

Pepperdine Law Review

The last twenty years have seen a sea-change in the area of proving causation in the toxic tort setting, with courts demanding stronger, scientifically tested evidence. At the same time, a closely related debate has been raging about separating cause from coincidence under the National Childhood Vaccine Injury Act compensation program for injuries that might have been the result of vaccinations. The Vaccine Act created a no-fault compensation fund financed by a tax on childhood vaccines to address harms resulting from those vaccines. Unfortunately, Congress gave little direction with regard to the level of causal certainty that would be required …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Pepperdine Law Review

No abstract provided.

Vacco V. Quill And Washington V. Glucksberg: Thou Shalt Not Kill, Unless Your State Permits Physician-Assisted Suicide , Jennifer Bradford

Pepperdine Law Review

No abstract provided.

The Right To Die: Definitional Inquiry And The Search For Truth, Bryan A. Kelley

Pepperdine Dispute Resolution Law Journal

This article explores the significant advantages of ADR techniques when dealing with elusive definitions in medical ethics. Part I briefly explores the meaning of definitional inquiry and justifies its important role in debate and achieving truth. Part II illustrates how confusion associated with certain terms leads to faulty reasoning, even in a recent Supreme Court decision. In Part III, some governmental sources of this confusion are revealed. Part IV illustrates the common use of rhetoric in the right-to-die debate as an appeal to emotion, rather than true meaning. Part V attempts to illustrate why this problem greatly affects the medical …

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Screen, Stabilize, And Ship: Emtala, U.S. Hospitals, And Undocumented Immigrants (International Patient Dumping), Jennifer M. Smith

Journal Publications

Pursuant to the Emergency Medical Treatment and Active Labor Act (EMTALA), patient dumping is illegal in the United States. American hospitals cannot inappropriately discharge or transfer unstable patients to other medical facilities in the United States without violating EMTALA. Yet, American hospitals are doing this very thing- international patient dumping, by inappropriately transferring or discharging (i.e. shipping) indigent undocumented immigrants in arguably unstable conditions to Third World medical facilities in the home country of the immigrant absent federal government oversight or compliance with EMTALA.

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This paper explores the commodification of women and biological processes, the confusion of scientific evidence with social agendas, and the conflict between marketing and public health. I assert that key actors in the healthcare marketplace - government, businesses, and doctors – have acted to enable weak medical and scientific evidence to be manipulated by ideological and profit-making partisans in a poorly regulated market. I focus on the unique role of the medical profession, which has acted with government and the private sector to shape the markets in human milk and infant formula. In a striking parallel to the pharmaceutical industry, …