Medical Jurisprudence Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Commitment To The Whole Athlete: Embracing The Role Of Cannabinoids In Collegiate Athletics, Kelli Rodriguez Currie

Seattle University Law Review

Cannabinoids can be a highly effective way for athletes to combat various kinds of pain associated with intense training. Derivatives of cannabis, such as marijuana, have been used for centuries as a form of pain relief. Part I of this Article discusses how cannabinoids are used in sports medicine. Part II discusses the different approaches to marijuana and cannabidiol use across sports leagues. Part III highlights the inconsistencies between the NCAA’s approach to testing for substance abuse and its investment in student-athletes’ well-being. Part IV discusses how the NCAA must focus on student-athlete health. Finally, Part V concludes that the …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Yours, Mine, Or Ours: Resolving Frozen Embryo Disputes Through Genetics, Carinne Jaeger

Seattle University Law Review

Part I of this Note provides some background on the current frameworks being used by courts in dual-progenitor disputes, while Part II presents the only two cases to deal with sole-genetic progenitor disputes and details how the courts conducted their analyses. Part III explains how courts establish legal parentage and how these legal parentage standards apply to frozen embryo disputes, specifically ones that involve only one genetic progenitor. Part IV proposes a new genetic framework to assist in the resolution of these issues. This Note concludes with a recommendation for future legislative intervention to aid in the widespread and uniform …

The Home-Field Disadvantage: Tort Liability And Immunity For Paid Physicians During Disasters Within The Pacific Northwest Emergency Management Arrangement Member States, Stephen Seely

Seattle University Law Review

This Note identifies how the Pacific Northwest Emergency Management Arrangement member states of Alaska, Idaho, Oregon, and Washington apply tort liability and immunity to medical professionals during times of disaster. This Note also identifies an example statutory scheme that, if enacted, will provide equal protection to all physicians who provide care to disaster victims, regardless of their local or out-of-state status.

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 …

Who's Swallowing The "Bitter Pill"?: Reforming Write-Offs In The State Of Washington, Lauren M. Martin

Seattle University Law Review

Washington’s application of the collateral source rule permits recovery for medical expenses that were never incurred and have no relationship to their market value. This application is set forth in Hayes v. Wieber Enterprises, Inc., where the plaintiff sued a restaurant for injuries she sustained from falling down the restaurant’s basement stairs. Why should the collateral source rule compel the defendant in Hayes to pay the original amount billed, $5,800, when the physician accepted $3,300 as payment in full? Is not $3,300 the reasonable or market value of the medical services provided to the plaintiff? This Comment discusses whether Washington …

Letting Katz Out Of The Bag: Cognitive Freedom And Fourth Amendment Fidelity, Christian Halliburton

Faculty Articles

Emerging surveillance technologies now allow operators to collect information located within the brain of an individual, allow the collection of forensic evidence regarding cerebral and cognitive processes, and are even beginning to be able to predict human intentions. While science has not yet produced a mind-reading machine per se, the devices referred to as cognitive camera technologies are substantial steps in the direction of that inevitable result. One such technique, a proprietary method called Brain Fingerprinting, is used as an example of the strong trend towards increasingly invasive and ever more powerful surveillance methods, and provides an entrée to a …

My Father, John Locke, And Assisted Suicide: The Real Constitutional Right, John B. Mitchell

Faculty Articles

This article discusses the right to assisted suicide, a right not derived from anything explicit or implied in any textual provision of the Constitution. It is a right derived from the two underlying political philosophies, which form the basis of the entire U.S. Constitutional enterprise: John Locke's Social Contract and Civic Republicanism. In Part I, this article discusses Glucksberg's fundamental rights analysis. So much has been written about this case that this article will limit comments to briefly adding thoughts as to why, given the combination of the Court's motivation, both institutional and pragmatic, in approaching this case, and its …

The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark

Faculty Articles

This article discusses the controversial right-to-die law, and the prominent cases surrounding it. It critically outlines various case outcomes with respect to the law, and discusses seminal development the law has seen.

Resisting Medicine/Remodeling Gender, Dean Spade

Faculty Articles

In this article, Dean Spade explores the problematic role of medicine in pushing for trans rights. Spade uses a combination of personal narrative of his own interaction with the healthcare system and his experience with legal advocacy on behalf of transgender and gender nonconforming clients. He reveals how the medicalization of trans identity, by categorizing it as a mental health disorder called Gender Identity Disorder, serves to reaffirm that everyone should either be male or female. Spade further asserts this medicalization can be problematic when advocating for the legal rights of gender nonconforming individuals. For example, he points out that …

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.

The Mythical Power Of Myth? A Response To Professor Dauer, Nathalie Des Rosiers

Seattle University Law Review

Professor Dauer makes two very interesting points about why endorsing a therapeutic jurisprudence (TJ) approach rocks fundamental assumptions about the common law legal system. First, he argues that demonstrating impartiality more than empathy is a practice so entrenched in the system that it cannot be dislodged. Second, he argues that the TJ approach that I advocate in my discussion of the Quebec Secession Reference is more "mediation" than adjudication. I would like to respond to both points and conclude with another example as to how a TJ approach may prove attractive in times of criticism about judicial activism in constitutional …

Direct-To-Consumer Advertising Of Prescription Drugs: After A Decade Of Speculation, Courts Consider Another Exception To The Learned Intermediary Rule, Mae Joanne Rosok

Seattle University Law Review

This Comment will explore whether Washington courts should recognize direct-to-consumer advertising as an exception to the learned intermediary rule. With the ultimate goal of advocating the best protection for the consumer, the discussion will suggest that Washington courts should not create an exception. A review of other exceptions to the learned intermediary rule does not support abandoning the doctrine when a drug company advertises its product directly to consumers. Nevertheless, advertising does affect consumer purchases and does influence consumer choices, and drug companies should accept the responsibility to present balanced information. This responsibility should encompass more than meeting the minimum …

Ex Parte Civil Commitment, Family Care-Givers, And Schizophrenia: A Therapeutic Jurisprudence Analysis, Éva Szeli

Seattle University Law Review

First, this Article will discuss schizophrenia and its impact on these individuals and their families. Family variables in the course of the disorder will be highlighted. Then, this Article will review the legal power afforded such families by ex parte provisions in civil commitment statutes using the involuntary examination portion of the Florida mental health code as a model. Finally, this Article will assess this system of civil commitment available to care-giving families in therapeutic jurisprudential terms, with recommendations for maximizing the therapeutic consequences and minimizing the antitherapeutic consequences of ex parte procedures.

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 …

Therapeutic Appellate Decision-Making In The Context Of Disabled Litigants, Ian Freckelton

Seattle University Law Review

This Article explores ways in which appellate decision-making can be enhanced so as to minimize the counter-therapeutic consequences of the curial process for litigants and witnesses with psychiatric illnesses and intellectual disabilities.

Advocacy Of The Establishment Of Mental Health Specialty Courts In The Provision Of Therapeutic Justice For Mentally Ill Offenders, Leroy L. Kondo

Seattle University Law Review

This Article explores the establishment of mental health courts as a partial solution to the perplexing societal problem that relegates mentally ill offenders to a "revolving door" existence in and out of prisons and jails.This inescapable situation results from a paucity ofeffective humanitarian policies, laws, and procedures for treating such medically disordered defendants. The establishment of mental health specialty courts is investigated as a potential means of addressing the complex legal issues and psycho-sociological problems faced by the judicial system in dealing with mentally ill offenders.

Erisa Preemption Of Medical Malpractice Claims: Can Managed Care Organizations Avoid Vicarious Liability?, J. Bradley Buckhalter

Seattle University Law Review

This Comment begins by briefly discussing the theory of respondeat superior and the vicarious liability of MCOs for the negligence of affiliated physicians.' Next, the section presents an overview of ERISA, focusing on ERISA's preemption of laws that impact employee benefit plans, particularly medical malpractice claims brought against MCOs seeking to hold them vicariously liable for an affiliated physician's negligence. Section III applies current ERISA preemption doctrine to a situation such as Peterson's, in which a plaintiff attempts to hold an MCO vicariously liable for an affiliated physician's negligence. Section IV concludes that, given the current state of ERISA preemption …

Genetic Test Results And The Duty To Disclose: Can Medical Researchers Control Liability?, Richard L. Furman, Jr.

Seattle University Law Review

This Comment examines research on the human genome and explores the existence of a duty to disclose genetic test results in clinical and research settings. Part II begins with a hypothetical describing how such a duty to disclose can arise. Part III (A-C) describes advances in the sequencing of the human genome, the development of reliable tests for genetic disorders, and issues regarding access and control of genetic test samples and results. Part III (D) looks at the tort law basis for a general duty of physicians to disclose medical information, the specific duty of clinical physicians to disclose the …

Overdue Process: Why Denial Of Physician-Prescribed Marijuana To Terminally Ill Patients Violates The United States Constitution, Matthew Segal

Seattle University Law Review

This Comment will begin with a brief history of the medical use of marijuana in western culture and the United States. It will then examine the existing federal statutory scheme governing the use of marijuana and conclude with a look at current beliefs about the medical value of marijuana. Section III will analyze previous attempts to collaterally attack the scheduling of marijuana through the courts and show why those efforts have generally failed. Section IV will perform a substantive due process analysis of William Cohen's case and submit that Mr. Cohen has a fundamental right to consult with his physician …

In Memoriam: Ralph Seeley Obscured By Smoke: Medicinal Marijuana And The Need For Representation Reinforcement Review, Aryeh Y. Brown

Seattle University Law Review

This Comment contends that because of the continuing legislative inability to deal adequately with this issue the courts must apply strict judicial scrutiny by way of a representational reinforcement theory to cases concerning the medicinal use of marijuana. Failure to do so perpetuates the dysfunction of the judicial and legislative process. It additionally detracts from the legitimacy of that process by fostering cynicism and contempt toward the legislature that promulgates such oppressive laws and toward the judiciary that allows their enforcement.

Assisted Suicide: The State Versus The People, John P. Safranek, Stephen J. Safranek

Seattle University Law Review

This Article will examine the Ninth Circuit's appeal to personal dignity and autonomy to justify a constitutional right of assisted suicide in the face of pluralist opposition, that is, a law duly enacted by a majority of elected representatives in a state or by the people directly. Scrutiny of the Ninth Circuit's decision will reveal the formidable jurisprudential obstacles to basing a right to assisted suicide on dignity and autonomy, obstacles the Supreme Court refused to overcome in revoking Compassion in Dying. This examination is divided into three parts: the first analyzes attempts to justify rights on the principle …

Toward A Pragmatic Model Of Judicial Decisionmaking: Why Tort Law Provides A Better Framework Than Constitutional Law For Deciding The Issue Of Medical Futility, Brent D. Lloyd

Seattle University Law Review

Recognizing that courts will eventually have to confront the issue of medical futility, this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those …

Medicare's Prospective Payment System At Age Eight: Mature Success Or Midlife Crisis?, Bruce C. Vladeck

Seattle University Law Review

This Article is necessarily a rather selective (for reasons of brevity and reader tolerance) and even subjective attempt to summarize the experience under PPS to date and to suggest some lessons that might be drawn from that experience for the future reform of PPS itself and of payment systems generally. No attempt will be made here to be comprehensive, to explain all the technical details of an inherently and increasingly complex system, nor even to systematically survey the rapidly growing body of literature. But the few issues and themes that clearly stand out will be the focus of most of …

Policing Cost Containment: The Medicare Peer Review Organization Program, Timothy Stoltzfus Jost

Seattle University Law Review

This Article will first examine the problem of health care cost inflation and the payment strategies the Medicare program has adopted to address that problem. It will then discuss the perverse incentives that these payment strategies create, and the role of the PRO program in addressing harmful provider behavior encouraged by those perverse incentives. The Article examines evidence on whether the PRO program is succeeding or failing in this mission, and suggests possible means of improving the effectiveness of the PRO program in policing cost containment. Specifically, it recommends clarifying and strengthening the deterrent role of the PROs, crafting PRO …