Medical Jurisprudence Commons^™

The Therapeutic Misconception: A Threat To Valid Parental Consent For Paediatric Neuroimaging Research, Michael Hadskis, Nuala Kenny, Jocelyn Downie, Matthias Schmidt, Ryan D'Arcy

Articles, Book Chapters, & Popular Press

Neuroimaging research has brought major advances to child health and well-being. However, because of the vulnerabilities associated with neurological and developmental conditions, the parental need for hope, and the expectation of parents that new medical advances can benefit their child, pediatric neuroimaging research presents significant challenges to the general problem of consent in the context of research involving children. A particular challenge in this domain is created by the presence of therapeutic misconception on the part of parents and other key research stakeholders. This article reviews the concept of therapeutic misconception and its role in pediatric neuroimaging research. It argues …

Of Apples And Trees: Adoption And Informed Consent, Ellen Wertheimer

Working Paper Series

This article argues that the doctrine of informed consent should apply to the process of adopting a child. There is substantial evidence that all adopted children are at higher risk of learning disabilities and mental health problems than nonadopted children. The article first summarizes the social science evidence demonstrating these risks and discusses some of the reasons why more extensive studies have not yet been done. The article then turns to the law of informed consent as created and applied in the contexts of medicine and law, and concludes that informed consent doctrine should apply to the process of adoption. …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Self-Determination In International Mediation: Some Preliminary Reflections, Jacqueline Nolan-Haley

Cardozo Journal of Conflict Resolution

Few concepts have generated as much discussion in the postwar international legal system as that of "self-determination." Scholars debate the proper identity of the "selves" endowed with this right, its boundaries and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components and is noticeably different in the private and public sectors.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

Stemming The Tide Of Stem Cell Research: The Bush Compromise, 38 J. Marshall L. Rev. 1061 (2005), Patrick Walsh

UIC Law Review

No abstract provided.

The Intersection Of Evaluation Be Mediators And Informed Consent: Warning The Unwary, Lela P. Love, John W. Cooley

Articles

No abstract provided.

Distracted Attentions: Intersexuality And Human Rights Protections, Morgan Holmes

Cardozo Journal of Equal Rights & Social Justice

The article argues that the medicalization of intersex conditions, often justified under an "emergency" rationale, undermines the autonomy and human rights of intersex individuals, particularly children. It critiques the framing of intersex as a medical emergency, which allows clinicians to bypass informed consent and prioritize the interests of families and medical professionals over those of the intersex individual. The article advocates for a shift in approach, emphasizing human rights protections and the need to respect the autonomy of intersex persons.

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 …

Preface To The Justice In Mediation Symposium, Lela Love

Cardozo Journal of Conflict Resolution

On March 12, 2004, the Benjamin N. Cardozo School of Law held a symposium on Justice in Mediation. The papers below represent the first group of articles emanating from that event. More articles will follow in the next issue of the Cardozo Journal of Conflict Resolution.

Politicizing The End Of Life: Lessons From The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The case of Theresa Marie Schiavo raises challenging legal and ethical issues, although the events of the case are not entirely novel. It is a well-settled principle under Florida law that individuals have a right to refuse life-sustaining medical treatment. After years of litigation, numerous courts have confirmed that removal of life support is legally appropriate under the facts of this case. Nevertheless, six days after Theresa's feeding tube was removed, the Florida legislature
opted to intervene in the final judicial decision by granting the Governor the authority to overrule the court's decision and to order the tube reinserted. These …

Federal Whistleblower Protection: A Means To Enforcing Maximum-Hour Legislation For Medical Residents, Robert Neil Wilkey

William Mitchell Law Review

The extension of whistleblower protection to medical residents is by no means a panacea to current abusive working conditions. Roles exist for the federal government, the states, and institutional organizations such as the ACGME. Whistleblower protection provides one subtle yet effective regulatory tool that could undoubtedly result in enforcement of labor standards and ultimately better working conditions for medical residents.

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

Industry And The Academy: Conflicts Of Interest In Contemporary Health Research, Jocelyn Downie

Articles, Book Chapters, & Popular Press

The case of Dr. Nancy Olivieri, the Hospital for Sick Children (HSC), the University of Toronto, and Apotex Inc. (hereinafter the "Olivieri case") is critically important to an understanding of the issues central to contemporary health research and the safety of research participants. First, the case illustrates the huge stakes in such research – not only billions of dollars, but the health of Canadians. Second, the case played out at a crucial time in the history of the regulation of health research. Like other recent high-profile cases, it challenged the ways in which research is governed at the local and …

Trust And Betrayal In The Medical Marketplace, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author argues in this Comment that disingenuity as first resort is an unwise approach to the conflict between our ex ante and our later, illness-endangered selves. Not only does rationing by tacit deceit raise a host of moral problems, it will not work, over the long haul, because markets reward deceit's unmasking. The honesty about clinical limit-setting that some bioethicists urge may not be fully within our reach. But more candor is possible than we now achieve, and the more conscious we are about decisions to impose limits, the more inclined we will be to accept them without experiencing …

Tainted Prosecution Of Tainted Claims: The Law, Economics, And Ethics Of Fighting Medical Fraud Under The Civil False Claims Act, Dayna Bowen Matthew

Indiana Law Journal

No abstract provided.

Caretakers And Collaborators, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

A chilling subplot in the twentieth-century saga of state-sponsored mass murder, torture, and other atrocities was the widespread incidence of medical complicity. Nazi doctors’ human “experiments” and assistance in genocidal killing are the most oft-cited exemplar, but wartime Japanese physicians’ human vivisection and other grotesque practices rivaled the Nazi medical horrors. Measured by these standards, Soviet psychiatrists’ role in repressing dissent, Latin American and Turkish military doctors’ complicity in torture, and even the South African medical profession’s systematic involvement in apartheid may seem, to some, almost prosaic. Yet these and other reported cases of medical complicity in human rights abuse …

The Ethics Of Advocacy For The Mentally Ill: Philosophic And Ethnographic Considerations, Bruce A. Arrigo, Christopher R. Williams

Seattle University Law Review

In this Article, we critically address several philosophical underpinnings of ethical decision-making that impact persons with psychiatric disorders. We focus our attention, however, upon an admittedly limited target area. Thus, we canvass a select number of significant issues that pose unique problems for humanity. The purpose of these excursions is that of reflection. In brief, we will speculatively examine: (1) the relationship between human rights and the law; (2) the relationship between mental illness and the law (i.e. the rights of the mentally ill); (3) the ethics of involuntary confinement (i.e., taking away and giving back rights to the mentally …

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach

Articles

When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling "mediation plus evaluation" a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party …

Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant

Faculty Scholarship

You can tell from remarks by prior speakers that regulatory approvals and liability prevention are of critical importance to progress in biomaterials. Gene therapy trials and the tragic outcomes of some of those trials have raised the specter of government suspension of clinical studies, termination of funding, and potential liability for personal injury under malpractice or products liability doctrines. Regulatory requirements and the terms of research grants and contracts have to be very carefully addressed by organizations testing, developing, making, selling and using biomaterials, biotechnology, and medical devices. However, many regulatory requirements are incomplete, ambiguous and confusing because the agencies …

Dollywood Is Not Just A Theme Park In Tennessee Anymore: Unwarranted Prohibitory Human Cloning Legislation And Policy Guidelines For A Regulatory Approach To Cloning, 31 J. Marshall L. Rev. 1385 (1998), Paul Tully

UIC Law Review

No abstract provided.

This Is Who Will Die When Doctors Are Allowed To Kill Their Patients, 31 J. Marshall L. Rev. 95 (1997), Michael Mcgonnigal

UIC Law Review

No abstract provided.

Beyond Autonomy: Coercion And Morality In Clinical Relationships, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

This article considers the problem of line-drawing between autonomy-preserving and autonomy-negating influence in clinical relationships. The author’s purpose is not to propose particular boundaries, either with respect to reproductive decisions by HIV-infected women or for other clinical choices. Rather, he attempts to shed some light on what drives our disputes about whether one or another influence method is compatible with autonomous choice.

The author argues that such disagreements reflect underlying conflicts between normative commitments, and that resolving these conflicts is essential to settling controversies over whether particular influences unduly interfere with autonomous choice. Alternative understandings of the prerequisites for autonomous …

Doctors, Aids, And Confidentiality In The 1990s, 27 J. Marshall L. Rev. 331 (1994), Sheila Taub

UIC Law Review

No abstract provided.

If I Tell You, Will You Treat Me, 27 J. Marshall L. Rev. 363 (1994), Mauro A. Montoya Jr.

UIC Law Review

No abstract provided.

Physician-Patient Sexual Contact: The Battle Between The State And The Medical Profession, Tanya J. Dobash

Washington and Lee Law Review

No abstract provided.

Neonatal Hiv Testing: Governmental Inspection Of The Baby Factory, 24 J. Marshall L. Rev. 571 (1991), Scott H. Isaacman

UIC Law Review

No abstract provided.

Free Exercise Of Religion

Touro Law Review

No abstract provided.