Medical Jurisprudence Commons^™

Teaching Harbeson, David K. Dewolf

Journal of Legal Education

No abstract provided.

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

Internet Pharmacies: Why State Regulatory Solutions Are Not Enough, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

Internet pharmacies are an economic and communications miracle--and a regulatory nightmare. It is estimated that Americans spent some $3.2 billion in 2003 on medications from the Internet, but Internet pharmacies permit consumers to evade long-standing regulatory protections, particularly those that rely on the oversight of drug prescribing and dispensing by licensed physicians and pharmacists.

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51, Gabriel O. Aitsebaomo

ExpressO

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

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 …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

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

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Breaking The Shield Of The Learned Intermediary Doctrine: Placing The Blame Where It Belongs, Sheryl Calabro

Cardozo Law Review

No abstract provided.

Making Lawyers Compete, Lester Brickman

Articles

The article argues that the market for contingent-fee-financed tort litigation is not price competitive, primarily due to uniform contingency fees charged by lawyers regardless of case-specific factors such as risk or effort required. This lack of competition leads to excessive costs for claimants and contributes to the expansion of tort liability. The author contends that the legal profession maintains this system through various barriers, including ethical rules and entry restrictions, which prevent competitive market forces from functioning effectively.

Reinventing Unchanged Andean Traditions, Terence N. D'Altroy

Cardozo Journal of International and Comparative Law

The article argues that Andean traditions and cultural property are not static but have been continually reinvented and adapted over time, challenging the common misconception that these elements have remained unchanged since pre-Columbian times. The author emphasizes the importance of understanding the dynamic and evolving nature of traditional knowledge and its relationship to power, history, and cultural identity in the Andean region. This understanding is crucial for addressing contemporary issues of cultural property and traditional knowledge in a region increasingly influenced by Westernization.

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

The Bane Of Surrogate Decision Making: Defining The Best Interests Of Never-Competent Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.

This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and …

Euthanasia In America - Past, Present, And Future: A Review Of A Merciful End And Forced Exit, Edward J. Larson

Michigan Law Review

Nearly 170 years ago, in the classic first volume of his Democracy in America, Alexis de Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." De Tocqueville viewed this as a peculiarly U.S. development. He attributed it to the authority of the judiciary in the United States to review governmental enactments and establish individual rights based on judicial interpretation of the federal and state constitution. "Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may …

Why Don't Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller

Michigan Law Review

Health care in America is an expensive, complicated, inefficient, tangled mess - everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world's worst ways. Occam's razor ("Among competing hypotheses, favor the simplest one") is of little help here. There are no simple hypotheses - everything …

An Open Question In Utah's Open Courts Jurisprudence: The Utah Wrongful Life Act And Wood V. University Of Utah Medical Center, Glenn E. Roper

BYU Law Review

No abstract provided.

The Cocaine Vaccine, Dru Stevenson

ExpressO

The controversial new cocaine vaccine (TA-CD) has the potential to be an extremely effective treatment tool for recovering addicts, but it also presents opportunities for non-therapeutic uses, such as preventing cocaine use in the first place. It is foreseeable that the cocaine vaccine could become a condition of parole or probation, or receiving welfare payments, or for employment in certain occupations. Universal vaccination is also a possibility but less likely for political reasons. This article investigates each of these areas of potential use. Any setting where mandatory drug testing is currently in place could become a venue for the vaccination. …

Patent Wars In The Valley Of The Shadow Of Death: The Pharmaceutical Industry, Ethics And Global Trade, Uche Ewelukwa

ExpressO

No abstract provided.

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

Gay And Lesbian Rights To Procreate And Access To Assisted Reproductive Technology, John A. Robertson

ExpressO

No abstract provided.

Discussed In Federico Stella, The Vitality Of The Covering Law Model: Considerations On Wright And Mackie, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Medical Marijuana And Personal Autonomy, 37 J. Marshall L. Rev. 1253 (2004), Andrew J. Boyd

UIC Law Review

No abstract provided.

“Just Say No!”: The Right To Refuse Psychotropic Medication In Long-Term Care Facilities, George P. Smith Ii

Scholarly Articles

This Article examines the provisions of The Omnibus Budget Reconciliation Act of 1987 (OBRA '87) surveying the case law as such that deals with the rights of patients in mental institutions to refuse psychotropic medication. The article focuses first on an analysis of the different substantive and procedural rights afforded to patients under state common law, state constitutions and the federal Constitution. It then proceeds to evaluate the impact of OBRA '87 on the rights of long-term care patients who refuse medication and choose to accept minimal administrative hearings instead of pursuing full judicial proceedings designed to protect those rights. …

Australia's "Most Extreme Case": A New Alternative For U.S. Medical Malpractice Liability Reform, Steven T. Masada

Washington International Law Journal

The United States currently confronts a severe increase in medical costs and a simultaneous decrease in the availability of health care services. A nearly identical situation recently emerged in the Commonwealth of Australia. This phenomenon, often labeled the "medical malpractice crisis," results in part from an increasing litigious trend spurred on by the appeal of potentially enormous damage awards. More lawsuits filed and increased award amounts raise the liability of health care providers and generate uncertainty in the medical malpractice insurance market. This in turn drives up the costs of insurance policy premiums and ultimately forces health care providers to …

Litigating Medical Malpractice Cases In Oklahoma: The Aftermath Of Hipaa, Melissa A. Couch

Oklahoma Law Review

No abstract provided.

Hippocrates To Hipaa: A Foundation For A Federal Physician-Patient Privilege, 77 Temp. L. Rev. 505 (2004), Ralph Ruebner, Leslie Ann Reis

UIC Law Open Access Faculty Scholarship

No abstract provided.

Maternity Leave Under The Fmla: An Analysis Of The Litigation Experience , Rafael Gely, Timothy D. Chandler

Faculty Publications

We begin with a brief description of trends in female labor force participation and the presence of dual-earner households in the U.S. labor market, conditions which likely led to the need for family and medical leave legislation. We then review various practices that business and government organizations have implemented to balance work and family conflicts, as well as related features of the FMLA, particularly those pertaining to childbirth and adoption. With this background in place, we introduce a framework for examining FMLA litigation. We then review cases litigated in federal court under the FMLA involving requests for family leave due …

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality, Lester Brickman

Articles

No abstract provided.

Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus

Faculty Scholarship

This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure "treatment facilities" for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of "civil commitment" has forced psychiatry to legitimate and arbitrate …

Good Enough To Use For Research, But Not Good Enough To Benefit From The Results Of That Research: Are The Clinical Hiv Vaccine Trials In Africa Unjust?, Ruqaiijah A. Yearby

All Faculty Scholarship

The epidemic of the Human Immunodeficiency Virus (HIV) infection in Sub-Saharan Africa, the region most affected by the HIV pandemic and where HIV is the leading cause of death, is reaching insurmountable proportions. In fact, out of the 36.1 million HIV infections worldwide, 25.3 million, seventy percent, are in Sub-Saharan Africa. Additionally, of the more than 15,000 people who are infected with HIV every day, ninety-five percent of the cases are in populations that live in developing countries such as those located in Sub-Saharan Africa. Due to the significant number of Africans infected with HIV, many researchers and ethicists have …

When Vitalism Is Dead Wrong: The Discrimination Against And Torture Of Incompetent Patients By Compulsory Life- Sustaining Treatment, Alicia R. Ouellette

Indiana Law Journal

No abstract provided.