Medical Jurisprudence Commons^™

An Artist's Theory Of Money, Franz Kaltenbeck

Cardozo Law Review

In the eighties, the German-Swiss artist Dieter Roth (1930-1998) formulated a theory of money which throws a cruel light on one of the most important instruments of social exchange. That money often comes from dirty business is a commonplace even if it cannot be denied as a fact. But the artist went beyond this observation. Far from being a "beautiful soul," Dieter Roth developed the idea that it belongs to the essence of money to have dark and criminal origins which arise from the same sources as our fears. Money, he said, is a kind of sedative, used to "conjure …

The En Banc Federal Circuit's Written Description Requirement: Time For The Supreme Court To Reverse Again?, Allen K. Yu

Cardozo Law Review

The Federal Circuit in Ariad v. Eli Lilly finally settled en banc the long-running dispute over whether the first paragraph of 35 U.S.C. § 112 contains a written description requirement separate from an enablement requirement. According to the Federal Circuit, such a requirement exists and exists to "convey[] to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date." The problem with the Federal Circuit's written description- "possession" doctrine is twofold. First, it characterizes the quid pro quo role of disclosure beyond its traditional role of placing knowledge in the …

Doctors, Patients, And Pills - A System Popping Under Too Much Physician Discretion? A Law-Policy Prescription To Make Drug Approval More Meaningful In The Delivery Of Health Care, Michael J. Malinowski

Cardozo Law Review

This Article challenges the scope of physician discretion to engage in off-label use of prescription drugs. The discretion to prescribe dimensions beyond the clinical research that puts new drugs on pharmacy shelves has been shaped by two historic influences: a legacy of physician paternalism, solidarity, autonomy, and self-determination that predates the contemporary commercialization of medicine by more than half a century; and regulatory necessity due to the limits of science and the innate crudeness of pharmaceuticals prior to the genomics revolution (drug development and delivery based on genetic expression). Although both factors have changed immensely, the standard for drug approval …

The Neurophysiology Of Adr And Process Design: A New Approach To Conflict Prevention And Resolution?, Jeremy Lack, François Bogacz

Cardozo Journal of Conflict Resolution

Neurobiology seems to be popping up everywhere. It is being taught in leadership conferences, sales and marketing seminars, management meetings, business schools, and increasingly in law schools and bar associations. The cover of the American Bar Association's Summer 2011 Dispute Resolution Magazine was dedicated to the topic of "Neuroscience and Negotiation." In it, Professor Richard Birke observes that "Neuroscience is everywhere." Is it a new fad or a fundamental awakening, providing new insights for the legal profession?

A Case Of Conflict Of Cultures: End-Of-Life Decision Making Among Asian Americans, Pat K. Chew

Cardozo Journal of Conflict Resolution

This essay presents a case example of a conflict between two cultures. One culture is the U.S. mainstream culture, as illustrated in a federal statute, the Patient Self-Determination Act. This statute provides legal guidelines for health care providers dealing with individuals' end-of-life decision making. Lawyers and health care providers refer to these guidelines in their counseling and treatments, apparently assuming that these guidelines are in the best interest of those they serve. The other culture is Asian American culture and its approach to end-of-life decision making. As this essay will discuss, Asian Americans have strong and long-established beliefs, values, and …

"The Life Of The Flesh Is In The Blood": State Storage And Usage Of Baby's Blood Sample, Jaclyn S. D'Arminio

Cardozo Journal of Equal Rights & Social Justice

The note highlights the ethical, legal, and policy challenges surrounding Newborn Screening (NBS) programs, particularly the storage and use of newborn bloodspots. It argues that while these programs provide crucial health benefits, the lack of informed consent regarding the retention and use of bloodspots raises significant privacy concerns. The central argument is that balancing public health benefits with individual privacy rights requires robust informed consent frameworks to maintain trust and ensure scientific progress.

To Be Or Not To Be (A Parent)? - Not Precisely The Question: The Frozen Embryo Dispute, Yehezkel Margalit

Cardozo Journal of Equal Rights & Social Justice

The article explores the legal and ethical complexities surrounding disputes over frozen embryos, particularly focusing on the balance between the right to become a parent and the right to avoid parenthood. It examines the legal status of frozen embryos and proposes a compromise solution where the objecting spouse is granted nonparenthood status, allowing the other partner to use the embryos without imposing parenthood on the unwilling party. The analysis emphasizes the importance of legal parenthood for societal welfare and the challenges posed by evolving reproductive technologies.

Advancing A Surrogate-Focused Model Of Gestational Surrogacy Contracts, Catherine London

Cardozo Journal of Equal Rights & Social Justice

The article examines the ethical, legal, and feminist implications of commercial surrogacy, arguing that the practice raises significant concerns about the commodification and exploitation of women and children. It critiques the current legal framework for its inconsistency and paternalistic approach, which often restricts women's reproductive freedom. The analysis advocates for a surrogate-focused contract model to address these issues, emphasizing the need to empower surrogates by granting them greater autonomy and bargaining power in surrogacy arrangements. This approach aims to balance the interests of all parties while minimizing the risk of exploitation.

Whose Body? Whose Soul? Medical Decision-Making On Behalf Of Children And The Free Exercise Clause Before And After Employment Division V. Smith, B. Jessie Hill

Cardozo Law Review

Within constitutional law, children's rights have suffered from severe neglect. The issue of parents' constitutional rights to deny children medical treatment based on religious belief is one area in desperate need of attention. Although the Supreme Court's 1990 decision in Employment Division v. Smith seemingly set forth a relatively clear rule regarding the availability of exemptions from generally applicable laws - such as those requiring parents to ensure that their children receive appropriate medical care - Smith has changed little in this realm, and if anything, it has only confused matters, highlighting the intractable nature of the issue. While Smith …

Dynamic Patent Governance In Europe And The United States: The Myriad Example, Kali Murray, Esther Van Zimmeren

Cardozo Journal of International and Comparative Law

This Article examines the emerging elements of a new model for patent governance. It is divided into four parts. In Section One, we develop a model of dynamic patent governance. This model extends the theoretical framework of network governance, to explain the emergence of networks in the decisionmaking infrastructure for the public and private actors in the patent system. Dynamic patent governance widens this theoretical framework in two key ways. First, dynamic patent governance, within its formal dimensions, is based on the idea that heterogeneous administrative actors regulate the grant and enforcement of patents. This challenges a perspective that sees …

Mary Jane's New Dance: The Medical Marijuana Legal Tango, Michael Berkey

Cardozo Public Law, Policy & Ethics Journal

The note examines the legal and social dynamics surrounding medical marijuana, tracing its historical use, the evolution of regulatory policies, and the ongoing conflicts between federal, state, and local laws. It highlights the shift in societal perception and the growing acceptance of medical marijuana, despite persistent legal challenges.

Has Italy Discovered Virgil? Utilizing The British Archetype To Create End-Of-Life Legislation In Italy, Nicholas A. Secara

Cardozo Journal of International and Comparative Law

The note examines the legal and ethical debates surrounding end-of-life rights, focusing on the tension between the right to life and the right to death. It highlights the lack of explicit end-of-life legislation in Italy, the inconsistent application of existing laws, and the ethical dilemmas faced by courts and medical professionals. The analysis compares Italy's legal framework with that of other European countries, such as Switzerland and the UK, and explores the implications of these differences for patients, families, and the medical community.

Who Takes The Heat? Criminal Liability For Heat-Related Deaths In High School Athletics, David Feingold

Cardozo Journal of Equal Rights & Social Justice

The note argues that criminal liability is a necessary and effective measure to address the preventable nature of heat-related deaths in high school sports. It highlights the inadequacy of current civil systems and the protective barriers of qualified immunity, which often shield coaches and schools from accountability. The vulnerability of young athletes, who rely heavily on their coaches for safety, underscores the need for stricter accountability measures to ensure their protection and reduce such tragedies.

Protecting The Right To Choose: Regulating Conscience Clauses In The Face Of Moral Obligation, Huseina Sulaimanee

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Use Of The Intent Doctrine To Expand The Rights Of Intended Homosexual Male Parents In Surrogacy Custody Disputes, Perri Koll

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the expansion of parental rights for homosexual male couples through surrogacy by promoting the intent doctrine and amending existing laws. It highlights the inconsistency in legal approaches across states and suggests that recognizing intended parenthood, regardless of sexual orientation, is essential for equality. The proposed solutions include adopting the intent doctrine nationwide and revising the Uniform Parentage Act to include same-sex couples.

Professional And Conviction Integrity Programs: Why We Need Them, Why They Will Work, And Models For Creating Them, Barry Scheck

Cardozo Law Review

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is internal regulation of the District Attorney's office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, …

The Federal Arbitration Act After Alafabco: A Case Analysis, Benjamin D. Tievsky

Cardozo Journal of Conflict Resolution

In late 2009, a divided Supreme Court of Washington held in Satomi Owners Ass'n v. Satomi, L.L.C. that the arbitration provision in a warranty addendum to a sales contract between a condominium developer and an owners' association was enforceable. Specifically, the court held that the provision was within the reach of the Federal Arbitration Act, and that a Washington state statute preserving the parties' right to litigate with regard to the warranty addendum was therefore preempted. This Note will explore the potential importance of this decision for defining the contours of the applicability of the Federal Arbitration Act (at least …

"Cover My Pills": Contraceptive Equity And Religious Liberty In Catholic Charities V. Dinallo, Ayelet S. Lebovicz

Cardozo Journal of Equal Rights & Social Justice

The note  examines the tension between the New York Womens Health and Wellness Act's (WHWA) goal of promoting women's health through contraceptive access and its burden on the First Amendment rights of religious employers. It argues that while the WHWA advances significant public health interests, its contraceptive mandate imposes substantial burdens on religious freedom and free speech, necessitating strict scrutiny. The analysis critiques the New York Court of Appeals' decision for failing to fully consider the plaintiffs' hybrid-rights claims under Supreme Court precedent, highlighting the need for lawmakers to balance competing interests while adhering to constitutional protections.

In The Manner Prescribed By The State: Potential Challenges To State-Enforced Hospital Limitations On Childbirth Options, Krista Stone-Manista

Cardozo Journal of Equal Rights & Social Justice

The article argues that hospital bans on vaginal births after cesarean (VBAC) infringe upon women's legal and constitutional rights, violating principles of autonomy and equality. These bans are not only medically unnecessary but also undermine international human rights standards that protect women's decisional autonomy in healthcare. The analysis posits that such bans discriminate against women and set a dangerous precedent for state and medical control over women's bodies during pregnancy.

Patient Neglect In Nursing Homes And Long-Term Care Facilities In New York State: The Need For New York To Implement Programs And Procedures To Combat Elder Neglect, Amanda Bassen

Cardozo Public Law, Policy & Ethics Journal

The article argues that New York State must enhance its legal framework and programs to address the prevalent issue of patient neglect in nursing homes and long-term care facilities. It emphasizes the need for stricter staffing requirements, improved training for caregivers, and more stringent penalties for neglect, drawing on successful models from other states and international efforts to raise awareness and implement effective solutions.

The Curing Law: On The Evolution Of Baby-Making Markets, Noa Ben-Asher

Cardozo Law Review

The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a cure paradigm has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as a cure for infertility (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as a cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between "full surrogacy" (where a surrogate is …

The Paternalistic Ideology Of Erisa And Unforgiving Courts: Restoring Balance Through A Grand Bargain, Edward A. Zelinsky

Articles

No abstract provided.

Lesbians, Gays, And People Living With Hiv: Facing And Fighting Barriers To Assisted Reproduction, Bebe J. Anderson

Cardozo Journal of Equal Rights & Social Justice

Numerous discriminatory barriers limit the ability of gays, lesbians, and people living with HIV to participate in assisted reproduction. Many of these barriers are created by laws and regulations, such as state laws criminalizing sperm donation by people living with HIV, and insurance regulations that are interpreted to limit infertility coverage to persons who have engaged in unprotected heterosexual intercourse that has not resulted in pregnancy. Other barriers are rooted in policies or practices of individual entities or individuals. For example, a gay man in Florida and a lesbian in California denied fertility services due to their sexual orientation have …

Gardasil A Year Later: Cervical Cancer As A Model For Inequality Of Access To Health Services, Micah Globerson

Cardozo Journal of Equal Rights & Social Justice

This article updates a prior feminist legal analysis of Gardasil, the vaccine against Human Papillomavirus ("HPV"), in light of new developments. Recent discoveries confirming that HPV poses threats to men led Merck & Co. ("Merck") to apply for FDA approval to market Gardasil to males. These developments have renewed focus on the recurring question of whether making Gardasil vaccination a prerequisite for boys' school participation will arouse the same public condemnation that resulted from the prior mandate targeting girls. Another new development involves a vaccine panel recommendation by the Centers for Disease Control ("CDC") that inadvertently resulted in a policy …

Bad Medicine: On Disciplining Physician Felons, Milton Heumann, Brian Pinaire, Simon Burger

Cardozo Journal of Conflict Resolution

Perhaps it is the white coat or the degrees encased and mounted on the wall. Perhaps it is the Hippocratic Oath that new physicians recite and that established physicians have putatively internalized over time, or perhaps it is the title, "Doctor," which conjures up images of a stethoscope, a black bag, house calls, nurture, and trust. When we are sick, we head to the doctor. Young children are urged to become doctors. When we watch television or go to the movies doctors are, with certain recent exceptions, portrayed in a positive light as compared to lawyers or politicians. In this …

The Work/Family Balance: New York's Struggle To Harmonize Domestic And Employment Spheres, Kerry Anne Hoffman

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges faced by American workers in balancing work and family responsibilities, highlighting the limitations of the Family and Medical Leave Act (FMLA) and advocating for the implementation of paid family leave policies. It emphasizes the need for both federal and state-level reforms to address the financial and societal barriers that prevent employees, particularly low-income families and single parents, from utilizing unpaid leave. The note also explores the progress made by states like California, New Jersey, and Washington in enacting paid family leave legislation, while noting the ongoing political opposition to such measures in New York. It …

The Freedom Of 3d Thought: The First Amendment In Virtual Reality, Marc Jonathan Blitz

Cardozo Law Review

No abstract provided.

The Use Of Litigation Screenings In Mass Torts: A Formula For Fraud?, Lester Brickman

Articles

The article critically examines the pervasive abuse of litigation screenings in mass tort cases, revealing a system driven by financial exploitation where medical evaluations are manipulated to generate lawsuits. These screenings, often designed to produce false positives, undermine the integrity of the legal system by creating a flood of specious claims. The analysis highlights how lawyers, doctors, and screening companies exploit legal loopholes and financial incentives, leading to billions of dollars in settlements and eroding public trust in the civil justice system.

State Government Speech In A Federal System, Laura J. Hendrickson

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of "Best Interest Of The Child" And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Cardozo Journal of Equal Rights & Social Justice

In order to consider the plausibility of contracts regarding Artificial Insemination, or Al, this article will first review various options and legal ramifications for choices regarding Al and then focus on the effect of inconsistent application of the Uniform Parentage Act, or UPA, among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will consider how the current standard of "best interest of the child" is being used in the …