Medical Jurisprudence Commons^™

Housing Intersex Juvenile Offenders, Janae Hunte

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal challenges faced by intersex individuals, particularly in the U.S. prison system, arguing that current laws and policies fail to adequately protect their rights. It highlights the need for standardized guidelines and protections, advocating for federal standards that respect intersex individuals' autonomy and safety in prison housing. The analysis focuses on the intersection of medical normalization practices, constitutional rights, and legislative shortcomings, emphasizing the importance of addressing these issues through legal reform and policy changes.

Estelle V. Gamble In A Post-Affordable Care Act World, Hallie E. Mitnick

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Keeping The Gates Open For Human Embryonic Stem Cell Research, Ren-How Harn

Cardozo Public Law, Policy & Ethics Journal

Human embryonic stem cell research represents an area of scientific progress that promises to deliver on the wonders mankind has thus far only seen in science fiction movies. However, ethical and legal concerns threaten to stifle research in an area often regarded as the holy grail of regenerative medicine. This Note analyzes the question in patent law of whether human embryonic stem cells constitute patentable subject matter under 35 U.S.C. §101 from a legal and policy perspective after the 2013 Supreme Court decision in Association for Molecular Pathology v. Myriad. The issue has generated recent interest and debate with …

The Implications Of Exclusion: How Pregnancy Exclusions Deny Women Constitutional Rights, Hannah Schwager

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

When Should Physicians Be Liable For Innovation?, Anna B. Laakmann

Cardozo Law Review

Uncertainty pervades medicine. It is particularly acute when a physician deliberately deviates from generally accepted practices in an attempt to improve patient care. Unlike innovative drug and device manufacturers, treating physicians are not subject to mandatory ex ante public regulation. The question of how to constrain physician behavior thus largely falls to the tort system. Innovation by definition involves a departure from custom, so adherence to customary standards of care essentially requires physicians to solely bear the liability costs of innovative treatment. This regime, of course, protects patients from unnecessary risks associated with untested therapies, but may also unduly deter …

Are Physician-Patient Communications Protected By The First Amendment?, Martha Swartz

Cardozo Law Review de•novo

In the past several years, a number of states have enacted laws restricting physicians’ rights to speak freely with their patients. These laws go beyond informed consent laws enacted in most states in the 1960s and 1970s. While the informed consent laws require physicians to provide certain categories of information to patients prior to invasive treatment—such as the nature of the risks and benefits entailed—these new laws either prohibit physicians from discussing certain topics or mandate that they provide specific information to their patients that is only questionably supported by medical evidence. In the past several years, a number of …

Reclaiming Mediation's Future: Re-Focusing On Party Self-Determination, Robert A. Baruch Bush, Joseph P. Folger

Cardozo Journal of Conflict Resolution

The premise of the Symposium that occasioned this Issue was that mediation is presently underutilized almost everywhere, and that the reason for this phenomenon is that the public simply doesn't grasp the great value of the process due to inadequate outreach and education efforts about mediation as an alternative to the legal system. Some suggest that greater use of mandatory mediation policies is called for as a response, rather than continuing the fruitless effort to explain mediation's value to an apparently unreceptive public. We disagree about both the cause and the solution for lack of public interest in mediation. We …

Copy And Paste: Transplanting International Hiv/Aids Model Laws Into African Countries, Maya Berinzon

Cardozo Journal of International and Comparative Law

There has been a recent increase in legislative and regulatory frameworks to govern HIV in Africa. This includes rules on when and how a health practitioner may disclose the HIV status of a patient to a spouse or sexual partner. In balancing the right to privacy against a doctor's duty of care, two international model laws have emerged, and have been wholly or partially copied by a number of African countries. This paper questions the usefulness of such model laws as legal transplants in national legislatures through an analysis of the regulations developed in thirty-eight African countries.

Gene Patents In The Wake Of Association For Molecular Pathology V. Myriad Genetics, Inc.: An International Perspective On Pharmacogenomics, Stephanie S. Lim

Cardozo Journal of International and Comparative Law

Now that the Supreme Court of the United States has held that isolated DNA fragments are not patentable subject matter under 35 U.S.C. §101 in Association for Molecular Pathology v. Myriad Genetics, Inc., thousands of existing isolated gene patents can be invalidated. In the European Union, by contrast, patent protection for human genetic sequences has always been strong and the BRCA gene patents at issue in Myriad are still valid in the European Union. It remains to be seen how the differential gene patent protection regimes in these developed nations will affect the biotechnology industry.

This Note poses that question …

Failing To Warn In The Context Of Rare Side Effects, Morris Dweck

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Testing The Boundaries Of Family Privacy: The Special Case Of Pediatric Sibling Transplants, Doriane Lambelet Coleman

Cardozo Law Review

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister's availability as an organ source. There are other transplant options - including the parents - but because the twins' skin is "equivalent," a "sibling transplant" is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister's skin on "her backside from her bra line down to the bottom of her buttocks or possibly her thighs." This procedure would be …

Liberty And Justice For All? Protecting The Right To Privacy For Incapacitated Individuals: The Need For Comprehensive Sterilization Legislation In All Fifty States, Mindy K. Fersel

Cardozo Journal of Equal Rights & Social Justice

The note examines the intersection of disability rights and reproductive rights, highlighting the legal confusion and human rights violations that arise from the lack of comprehensive federal guidance on the sterilization of individuals with disabilities. While landmark Supreme Court decisions like Griswold v. Connecticut and Roe v. Wade established constitutional protections for reproductive autonomy, the legacy of cases such as Buck v. Bell and inconsistent state statutes continue to undermine the rights of individuals with disabilities. The article argues that the absence of clear legislative frameworks leaves vulnerable populations at risk of exploitation and discrimination, necessitating urgent reform to ensure …

Symposium Issue Introduction And Dedication, Shawna Benston

Cardozo Journal of Conflict Resolution

The 2013 Jed D. Melnick Annual Symposium, which took place on November 18th, 2013, was entitled "Bioethics, Healthcare Policy, and Alternative Dispute Resolution in the Age of Obamacare." Scholars and practitioners of bioethics alternative dispute resolution came together to discuss the likely impact of a healthcare overhaul born of an ethical challenge: to achieve the greatest good for the greatest number while continuing to honor the value of the individual. Collectively, the Symposium participants anticipated the particular importance of mediation and bioethical debate within the complex health-delivery system that has been drafted under this biomedical imperative.

The Growing Power Of Healthcare Ethics Committees Heightens Due Process Concerns, Thaddeus Mason Pope

Cardozo Journal of Conflict Resolution

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function.

Bioethics Mediation & The End Of Clinical Ethics As We Know It, Autumn Fiester

Cardozo Journal of Conflict Resolution

In this Article, I will not only argue that bioethics mediation is a superior approach for resolving ethics conflicts, but I will also defend the controversial position that it is the only ethically justifiable method for resolving values-based conflicts in a pluralistic society. Although it has so far been relegated to the status of mere handmaiden to conventional consultation, bioethics mediation-as its detractors have surmised-has the potential to end clinical ethics consultation as we know it.

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …

Success And Failure In Adr: A Dialogue Between Partners, Lela P. Love, Joseph B. Stulberg

Articles

Love and Stulberg critically discuss policy, scholarly, and practice developments in four areas of program development in the area historically referenced as alternative dispute resolution (ADR): the range of process options; the impact of court procedures on ADR program development and practice; the nature of ADR scholarship and training; and the general public's receptiveness to or rejection of the normative principles that structure ADR collaborative processes. Their concluding remarks suggest that the promise of ADR, particularly of the mediation process, remains inspiring to many, even if its effective implementation remains uneven.

Shopping For Gender: The Unlawfulness Of An Unregulated Market For Prenatal Gender Selection And Selective Gender Abortion, Eujean Park

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Mandatory Ultrasound Statutes And The First Amendment, Shifting The Constitutional Perspective, Cheri D. Smith

Cardozo Journal of Equal Rights & Social Justice

The jurisprudence of abortion law is replete with instances in which the concerns of the woman seeking the procedure have taken a back seat. The newest battleground in abortion regulation involves mandatory ultrasound statutes touted as informed consent regulations. The analysis of courts confronting these statutes has turned on whether the mandatory disclosures violate the physician's First Amendment right to be free from compelled speech. The particular breed of statute at issue in this paper requires a physician not only to perform an ultrasound, but also to make the images visible to the woman, to make audible the heartbeat, and …

Harm And The Fluid Nature Of Identity In Wrongful Life Cases Involving Preimplantation Genetic Diagnosis, Matthew Reisman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Shaken Baby Syndrome On Trial, Keith A. Findley, Barry Scheck

Articles

This is a short review of Deborah Tuerkheimer's book, "Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice" (Oxford University Press 2014).

Physician Speech And Mandatory Ultrasound Laws: The First Amendment's Limit On Compelled Ideological Speech, Jennifer M. Keighley

Cardozo Law Review

Since Planned Parenthood v. Casey opened the door to more pervasive state regulation of abortions, states have increasingly used their regulatory power to coerce physician speech. The Supreme Court has not yet explained, however, whether and how physicians' First Amendment rights limit such attempts to coerce state-mandated speech. This Article argues that while the precise contours of physicians' First Amendment rights have yet to be articulated, physicians certainly retain the core First Amendment right to refuse to speak the state's ideological messages. I then evaluate whether mandatory ultrasound laws, which require a physician to perform an ultrasound exam and to …

Distorted And Diminished Tort Claims For Women, Jamie R. Abrams

Cardozo Law Review

Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman - distinct from the pregnant woman or the parent - squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases Of Wrongful Life, Shawna Benston

Cardozo Journal of Conflict Resolution

In light of the legal and societal disfavor toward wrongful life suits, this Note examines the cultural, (bio)ethical, legal, and philosophical background of the wrongful life tort. While the disability rights movement and the pro-life strains of the abortion debate hope to silence proponents of wrongful life suits, the evolution of a legal right to die underscores the importance of autonomy and privacy for the individual. Philosophical exploration of prospective children-including the nonidentity problem, claim-rights and corresponding duties, and the subjunctive-threshold notion of harmhelps explain the confusion and moral conundrum that pervade the very notion of "wrongful life" and that …

An Unlikely Feminist Icon?: Justice Harry A. Blackmun's Continuing Influence On Reproductive Rights Jurisprudence, Sarah Primrose

Cardozo Journal of Equal Rights & Social Justice

The article examines Justice Harry Blackmun's pivotal role in the landmark *Roe v. Wade* decision, which legalized abortion in the United States and significantly advanced women's reproductive rights. Despite his initial reluctance to take on the case, Blackmun's opinion established a woman's right to privacy under the Fourteenth Amendment, balancing this right against state interests. The decision has had profound and enduring implications for women's autonomy and equality, though it has also faced persistent challenges and critiques, including concerns about its constitutional basis and the arbitrariness of the trimester framework. The article highlights Blackmun's personal background and jurisprudential approach, emphasizing …

The Goldilocks Principle And Informed Consent In Joint-Spouse Representation, Madison Kaplan

Cardozo Journal of Equal Rights & Social Justice

The note explores the complexities of joint legal representation of spouses, emphasizing the need for balanced and clear informed consent. It highlights the challenges posed by conflicting legal guidelines and the necessity of detailed Joint Representation Agreements (JRAs) to navigate confidentiality and communication duties effectively.

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.

Ringing The Bell On Concussions: The Rise Of Head Injuries And Cognitive Decline In Football Players, And The Nfl's Obligation To Improve Safety Measures, Jarryd Werts

Cardozo Public Law, Policy & Ethics Journal

The NFL faces significant legal and ethical challenges in addressing the long-term health consequences of concussions among its players. While the league has implemented various safety measures and policies, such as rule changes and educational initiatives, these efforts may be insufficient to fully protect players from the risks associated with repeated head trauma. The NFL must continue to improve its safety protocols not only to safeguard its current and future players but also to set a precedent for other contact sports leagues. The legal battles over negligence and fraud highlight the need for a more robust approach to player health …

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Cardozo Law Review

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This Article, which embraces the second story, assesses the current wave of deinstitutionalization litigation. It contends that things will be different this time. The particular outcomes of the first wave of deinstitutionalization litigation, this Article contends, resulted from the …