HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Sunday, March 26, 2006

Latest Health Law Downloads from SSRN

Yesterday, I posted links and abstracts for the papers that have been posted to the SSRN Public Health Law and Policy web page in March (so far).  Today, it's the same exercise, this time for papers on the SSRN Health Law web page.  Links are to abstract pages, from which it is easy to get to the full paper (if one is available).

Abstract:     
After nearly twenty-five years on the bench, Justice Sandra Day O’Connor left the Supreme Court at the end of January 2006. There has been much discussion of Justice O’Connor’s decisions in areas such as federalism, the First Amendment’s Establishment Clause, and affirmative action, among other topics. But very little has been written about her important role in the development of federal constitutional law concerning the “right to die.”

This Essay seeks to fill this gap in the literature by exploring Justice O’Connor’s important concurring opinions in Cruzan and Glucksberg. I argue that these opinions created constitutional promises of a sort that remain unfulfilled as Justice O’Connor retires. I also explain why this need not have been the case while highlighting the real world consequences of the failure to live up to the promises.

Date Posted:March 26, 2006
Last Revised:March 26, 2006
Accepted Paper Series

Abstract:     
This essay, a revised version of the United States report on "Euthanasia" to be presented at the XVII International Congress of Comparative Law, surveys the state of the law, both decisional and statutory, on the permissibility of compassionately motivated actions to terminate human life. It deals with a range of legal categories, suicide, attempted suicide, euthanasia, assisted suicide and the termination of life-sustaining treatment. It highlights the deeply ambivalent attitudes held toward these actions in contemporary America and how this ambivalence has resulted in obscure and artificial distinctions.

Date Posted:March 24, 2006
Last Revised:March 24, 2006
Accepted Paper Series
2 downloads

Abstract:     
Retainer care arrangements allow patients to pay a fee directly to a physician’s office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as “boutique medicine.” Both sides are deploying a variety of legal tactics in order to attain their goals.

After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most commendably, retainer physicians are aggressively counseling their patients on how to avoid getting ill. More questionably, they are trading faster access to better health care for cash. Most troublingly, they are bundling medical care with unrelated amenity services.

Each of these "faces" of concierge care deserves a different legal response. This article develops a normative framework for tailored intervention. Regulators have taken some promising steps toward mitigating the worst aspects of retainer care conversions. However, taxation may be the only approach sufficiently targeted to reduce incentives for queue-jumping and amenity-bundling while promoting innovation in preventive care.

Date Posted:March 24, 2006
Last Revised:March 24, 2006
Working Paper Series
7 downloads

Abstract:     
Has science anything to tell us about responsibility? Addiction is a particularly interesting test case. Two fields of science, behavioral economics and neurophysiology have lately given us a great deal of information about addiction, much of which may be useful to the law. When it comes to addiction, unfortunately, the two fields seem to point in opposite directions.

Economics has provided us with models of addictive behavior based upon the supposition that addiction is the result of choice, a development that appears to support the conclusion that addictive behavior is not the product of “non-volitional forces.” If addictive behavior can be fully accounted for in terms of the addict’s choices, and if there is no need to postulate the existence of forces overwhelming the addict’s will, is there any reason not to hold the addict fully responsible for what he does?

Neurophysiology, on the other hand, has demonstrated that substance abuse causes significant changes in brain physiology, which appears to support the conclusion that addiction is a disease. If addiction corresponds to physical changes in the nervous system, then addiction is a disease, and addictive behavior is merely a symptom of the disease. We may be responsible for contracting a disease, but can we be held responsible for the symptoms once we have it?

Science does have a good many things to tell us about addiction, but so far whether or not the addict is responsible for what he does is not among them. The fact that choice theories–rational addiction, behavioral economics–can develop models in which addiction is the result of choice should not surprise us: Did anyone ever believe that addicts did not intend to do what they were doing? Did anyone ever believe that addicts did not choose to do what they did? The question has always been whether those choices were free, and whether the addict was fully in control of his choices. That is the question that the law must deal with, and in this paper I argue that choice theories have nothing to say to that question. Neurophysiology, on the other hand, has made remarkable strides in tracing down the effects of heavy drug use on the brain. But that behavior should effect brain changes is not by itself remarkable, and does not entail that behavior is not fully voluntary.

There are three possible conclusions. The first is that although science has yielded no results so far, we may hope for results in the future. The general nature of the arguments against drawing conclusions about responsibility from the existing literature makes that, if not entirely a vain hope, at least implausible. The second is that responsibility is simply one of the areas of human experience that is cut off from science; there must, therefore, be other ways of knowing what we do about addiction, control, and responsibility. And the third conclusion may be the most pessimistic of all, namely that responsibility itself is a confused notion, and that we should be skeptical about its role in the law.

Date Posted:March 23, 2006
Last Revised:March 23, 2006
Working Paper Series
1 downloads

Abstract:     
This Essay calls for a repositioning of two distinct legal regimes - inalienability and contract - that govern the imposition of liability for medical malpractice upon doctors and institutions, respectively. The inalienable right to tort remedies places opportunistic patients - who file unmeritorious lawsuits against doctors and increase the cost of medical care - in the same pool with honest patients, who cannot credibly promise doctors not to sue them opportunistically. The contract regime allows managed care organizations (MCOs) not to monitor their doctors, which enables bad doctors to pool with good doctors. MCOs' functioning as a platform in a two-sided market for medical services intensifies this pooling. Good doctors and honest patients consequently suffer. Good doctors earn less than they should and their prospect for being erroneously adjudicated liable for malpractice looms larger than it should. Honest patients subsidize the opportunists by paying for medical care more than they should.

A complete switchover between inalienability and contract would make good doctors, honest patients, and society at large better off. MCOs' institutional liability should become patients' inalienable right; the law also should stop treating the patient's entitlement to tort remedies as inalienable. Under this system, an MCO can offer patients a menu of agreements. The menu's baseline agreement must honor the patient's inalienable right to tort remedies; other agreements are free to limit the MCO's liability. The price-difference between the agreements would credibly inform patients about the quality of the MCO's doctors. To attract patients, the MCO would have to keep this difference at its lowest, which would motivate it to hire good doctors only. Honest patients would then agree to limit their entitlement to tort remedies and get inexpensive quality care in return. An opportunistic patient would prefer the full-liability agreement - a self-selection that would not only cost more, but would also expose the patient to defensive medicine.

Date Posted:March 23, 2006
Last Revised:March 24, 2006
Working Paper Series
1 downloads

Abstract:     
This paper investigates one of the largest pharmaceutical markets using a discrete choice model that allows marketing to affect product differentiation. Four main results emerge from an analysis of monthly panel data on antiulcer drugs from 1977 to 1993. Observed drug characteristics became less important relative to marketing in determining demand. Total marketing by all firms reduced product differentiation and raised the cost of entry significantly. Although increasingly rivalrous, marketing expanded the market, increasing social welfare. Finally, estimated returns to eliminating one adverse drug interaction in the pioneer drug approximately equal its first two years of sales.

Date Posted:March 23, 2006
Last Revised:March 23, 2006
Working Paper Series
2 downloads

Abstract:     
How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of treatment that extends from a property-like limitation of ownership rights to something resembling rights afforded to an absolute person.

This comment theorizes about the impact of a state that statutorily regards an embryo as a potential person. Such a statute may assert that embryonic material with the active potential to develop into a live born offspring is a potential person due special respect. If special respect was presumed to lie on the person-oriented side of the spectrum, it would afford the potential person something akin to the most fundamental human rights. Such a definition draws into question the common practice of destroying embryos in IVF and stem cell research.

Part I assesses the current perception of embryos as persons, potential persons afforded due respect, and property. Part II discusses the potential insufficiency of characterizing embryos as persons and property. Part III analyzes variances within the spectrum of interpreting embryos as potential persons, including property that offers its owner a limited bundle of rights and persons who possess limited rights of their own. Part III also explains the value of treating embryos as more akin to persons than property. Part IV reflects on the implications that regarding an embryo as a person with limited rights would have upon medical technology. This includes an analysis on IVF, a consideration of traditional techniques for culturing stem cell lines, and an assessment of the most recent medical advances in deriving embryonic stem cells.

Date Posted:March 23, 2006
Last Revised:March 23, 2006
Working Paper Series
2 downloads

Abstract:     
Any human endeavor is prey to human error. The consequences of human error in the area of assisted reproductive technologies are magnified by our playing in the field of creation of new human lives and lifelong relationships. Stories of assisted reproductive technology (ART) mistakes continue to fascinate the media and popular culture, pain their multiple victims, and haunt the nightmares of ART participants, past, present, and future. Though there are many kinds of mistakes that can arise in these complex processes, this Article focuses on mistakes or mix-ups involving the accidental use of incorrect gametes (sperm, ova, and embryos) during in vitro fertilization (IVF) procedures. After examining the reported mistakes and the ways that courts have resolved issues of ART mistakes, this article looks at a proposed Model Act and suggests an alternative approach that has a particular sensitivity to women’s labor-based, gestational contributions to reproduction.

Date Posted:March 23, 2006
Last Revised:March 23, 2006
Accepted Paper Series
1 downloads

Abstract:     
The standard assumption in economic theory is that preferences are stable. In particular, they are not changed as a result of experience with the good/service/event. Behavioral scientists have challenged this assumption and claimed (providing evidence) that preferences are constantly changing when experience is accumulated. This paper tests the effect of experience on preferences for attributes of health-care events. We are using two very different samples and a methodology that facilitates the estimation of marginal utilities of various attributes of a composite non-traded health-care service. Discrete Choice Experimental design is employed for the analysis of samples of (1) women who gave birth, and (2) women who were diagnosed with breast cancer. For each group we had information on experience. In the case of women who gave birth, the sample was decomposed into 3 sub-samples: pregnant women with their first child (no experience); women after one delivery (single experience); and mothers after more than one delivery (multiple experience). Preferences of the 3 sub-groups have then been compared. The breast cancer patients reported the number of chemotherapy/radiation treatments they have already received, thus enabling the construction of an experience variable and testing for the effect of experience on preferences. The basic finding is that preferences for health-care attributes are significantly changed as a result of experience with the health event. However, the amount of experience is irrelevant.

Date Posted:March 21, 2006
Last Revised:March 21, 2006
Working Paper Series

Abstract:     
This empirical study focuses on medical negligence lawsuits filed in Oklahoma, addressing the following question. Do the number of medical negligence cases filed and the amount of subsequent lawsuit payouts indicate a need for tort reform in Oklahoma? First, the backdrop leading to the enactment of tort reform is set, followed by a presentation of a portion of Oklahoma's 2004 public hearings testimony regarding tort reform. Next, the availability of empirical data for Oklahoma is addressed. The results of the Oklahoma empirical study is provided, followed by a presentation of statistics regarding medical negligence payouts. Finally, the conclusions drawn from this empirical study are set forth, including the conclusion that Oklahoma should adopt a state-wide system whereby statistics regarding case filings are maintained.

Date Posted:March 21, 2006
Last Revised:March 21, 2006
Accepted Paper Series
2 downloads

Abstract:     
This Article reveals that many already issued and actively enforced medical biotechnology patents are invalid. Biologics, medical therapeutics derived through biotechnology techniques, are the fastest growing and most promising pharmaceutical sector. They represent a $30 billion a year industry that is anticipated to double in five years and already provides novel treatments for diabetes, cancer, and heart disease. Due to unforeseen consequences of century-old decisions, generic manufacturers currently are not able to make biologics even after biologic patents expire. As early biologics are just starting to go off-patent, this regulatory mix-up is now having a notable impact on the availability of biologics and significantly raising the cost of health care.

The generic biologics debate has dramatically heated-up recently, with the biotechnology and pharmaceutical industry arguing for the status quo, senators threatening legislation, and the Food and Drug Administration struggling to handle the situation. This Article exposes for the first time that industry’s own arguments have an unintended, striking consequence - their biologic patents fail enablement, and therefore are not valid in the first instance.

Date Posted:March 21, 2006
Last Revised:March 22, 2006
Working Paper Series
3 downloads

Abstract:     
The enclosed Article is the first comprehensive synthesis of two decades of empirical research on medical malpractice settlement. The portrait that emerges from this synthesis is both more reassuring and more complex than popular portrayals. Although the fit is not perfect, the merits generally drive the settlement process. Weak claims consistently fare the worst, toss-ups cases do better, and strong cases have the most success.

Prior scholarship on malpractice outcomes has understated the strength of this correlation because it has focused principally on the impact of negligence on the settlement rates and has largely ignored the importance of settlement amount. The studies examining the relationship between settlement rate and case quality have invited mixed reactions because they have found a correlation that, while strong, leaves room for improvement. In 10-20 percent of the weakest cases, the plaintiff receives a settlement payment. In a similar fraction of the strongest cases, the plaintiff recovers nothing.

Yet, settlement rates, standing alone, paint a misleading picture. Equally important is the relationship between the strength of the plaintiff’s case and the size of the payment received in settlement. As long as the payments received by the plaintiffs in weak and toss-up cases are appropriately discounted to reflect case quality, then settlement of the case is fully consistent with fair treatment of the defendant. For that reason, settlement rate data inherently overstates the prevalence of “error.” Settlement size must be considered as well.

In malpractice litigation, the amount paid to settle a case is routinely adjusted to match the strength of the plaintiff’s case. Although only a few studies have collected this data, they show that payments in weak and toss-up cases are heavily discounted. In fact, the data on settlement size suggest that defendants are able to extract an even deeper discount than is warranted by the merits. The ability of insurance companies to extract this discount suggests that malpractice defendants enjoy a systematic advantage in bargaining power. Although the source of this asymmetry has yet to be determined, the studies justify several interesting hypotheses.

Date Posted:March 21, 2006
Last Revised:March 21, 2006
Working Paper Series
2 downloads

Abstract:     
This article considers several parameters of the late twentieth and early twenty-first-century debate in the U.S. about ethics, politics, science, and ideology (popularly referred to as the "culture wars"). The article focuses, in particular, on shifting understandings of the embryo. The article reviews developments in science (especially the advent of stem-cell research and cloning) that have affected understandings of embryo, the history of debate about abortion in the U.S., and the place of discourse about abortion in a more far-reaching social debate about family, personal relationships, and the scope of personhood in the U.S.

Date Posted:March 20, 2006
Last Revised:March 23, 2006
Accepted Paper Series
3 downloads

  • Dimensions of Informed Consent to Treatment
    International Journal of Gynecology and Obstetrics, Vol. 85, pp. 309-314, 2004
    Bernard Dickens and Rebecca J. Cook
    University of Toronto - Faculty of Law and University of Toronto - Faculty of Law

Abstract:     
Modern law approaches patients’ consent to treatment not only through liability for unauthorized touching, namely criminal assault and/or civil (non-criminal) battery, but also through liability for negligence. Physicians must exercise appropriate skill in conducting procedures, and in providing patients with information material to the choices that patients have to make. The doctrine of informed consent serves the ethical goal of respecting patients’ rights of self-determination. Information is initially pitched at the reasonable, prudent person in the patient’s circumstances, and then fine-tuned to what is actually known about the particular patient’s needs for information. Elements to be disclosed include the patient’s prognosis if untreated, alternative treatment goals and options, the success rate of each option, and its known effects and material risks. Risks include medical risks, but also risks to general well-being such as economic and similar reasonable interests. Consent is a continuing process, not an event or signed form.

Date Posted:March 10, 2006
Last Revised:March 10, 2006
Accepted Paper Series
2 downloads

Abstract:     
This paper is a case study of the use of public use administrative data for the estimation of empirical relations when key dependent variables are not available in the data. It is shown that the out-of-hospital mortality rates can be identified using the patient discharge data without post-discharge death records. Using data on the lengths of hospitalizations and out-of-hospital spells, the mortality rates before and after discharge as well as discharge and re-hospitalization rates are estimated for a sample of heart-attack patients hospitalized in California between 1992 and 1998. The results suggest that ignoring variation of discharge rates among hospital types could be misleading in evaluating hospital performance regarding mortality risks.

Date Posted:March 10, 2006
Last Revised:March 10, 2006
Working Paper Series
2 downloads

  • Obstetric Fistula: The Challenge to Human Rights
    International Journal of Gynecology and Obstetrics, Vol. 87, pp. 72-77, 2004
    Rebecca J. Cook and Bernard Dickens
    University of Toronto - Faculty of Law and University of Toronto - Faculty of Law

Abstract:     
Obstetric fistula can be explained to result from different causes. These holes in the tissue wall between the vagina and bladder and/or rectum are most prevalent in resource-poor countries, attributable to prolonged obstructed labour and absent or inaccessible remedial prenatal services. Obstructed labour is often due to small pelvic size, resulting from women’s youth and premature childbearing and/or malnutrition. Poverty at national health-service and family levels often predisposes pregnant populations to suffer high rates of fistula. Global estimates showing up to 100,000 new cases each year and 2 million affected girls and women are probably gross underestimates. Fistula devastates lives of sufferers, who are often expelled by husbands and become isolated from their families and communities. Failures of states to provide prenatal preventive care (including medically indicated cesarean deliveries) and timely fistula repair violate women’s internationally recognized human rights, especially to healthcare in general and reproductive healthcare in particular.

Date Posted:March 10, 2006
Last Revised:March 10, 2006
Accepted Paper Series

Abstract:     
We analyze mechanisms to kidney exchange with good samaritan donors where exchange is feasible not only among donor-patient pairs but also among such pairs and non-directed alturistic donors. We show that you request my donor-I get your turn mechanism (Abdulkadiroglu and Sonmez [1999]) is the only mechanism that is Pareto efficient, individually rational, strategy-proof, weakly neutral and consistent.

Date Posted:March 9, 2006
Last Revised:March 9, 2006
Working Paper Series
3 downloads

Abstract:     
The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, as you have no doubt noticed, the content of the discourse itself has been sometimes quite impoverished and unsatisfying. No one camp in this debate is solely to blame for these difficulties - partisans on all sides bear some measure of responsibility for the current state of the public discourse. In the interests of improving the quality of public deliberation and discussion on this matter, I will provide a few modest suggestions for how the public debate might be improved. I begin with a few general observations applicable to both domains under consideration today, stem cell research and cloning. Then I focus on each separately; first, directing my comments to stem cell research, and then turning to the distinct (though obviously closely related) matter of cloning.

Date Posted:March 6, 2006
Last Revised:March 9, 2006
Accepted Paper Series
14 downloads

Abstract:     
The enormous significance of the Bush stem cell funding policy has been evident since its inception. The announcement of the policy on August 9, 2001 marked the first time a U.S. president had ever taken up a matter of bioethical import as the sole subject of a major national policy address. Indeed, the August 9th speech was the President's first nationally televised policy address of any kind. Since then, the policy has been a constant focus of attention and discussion by political commentators, the print and broadcast media, advocacy organizations, scientists, elected officials, and candidates for all levels of office (including especially the 2004 Democratic nominee for President, Senator John Kerry, who made his opposition to the Bush policy a centerpiece of his domestic campaign, mentioning it explicitly in his acceptance speech at the Democratic National Convention). The biotechnology industry has taken a keen interest in stem cell research as a possible avenue for medical therapies; one study suggests that as of 2002 private sector companies had spent an aggregate of $208 million on research and development of stem cell technologies. In response to the policy, there has been a flurry of state legislation proposed and enacted, with some states affirming and others condemning the Administration's approach. Finally, the great prominence of the national and international debate on human cloning has drawn further attention to the issue of embryonic stem cell research (and by extension, the Bush policy), given that one application of somatic cell nuclear transfer is the production of cloned human embryos from which stem cells may be derived (so-called Therapeutic Cloning).

To date, the significance of the Bush stem cell policy has been framed and publicly debated in terms of its practical import: Does it impede the scientific and medical progress that the research seems to promise? Is it adequately protective and respectful of embryonic human life? Aside from its great practical significance, however, the Bush policy is arguably one of the most important recent legal developments for the field of bioethics for an additional reason: its deep pedagogical significance. The Bush policy provides an unparalleled window into the nature and substance of bioethical regulation within the unique framework of the American system of government. And it does so in dramatic fashion, against the backdrop of some of the most enduring and vexing questions in all of bioethics: What is owed to developing human life, and how does this obligation stand in relation to the aim of science to advance knowledge with the ultimate aspiration of alleviating human suffering? Reflecting on the nature and scope of the policy yields insights into a number of crucial matters that are central to the problem of whether and how to govern science and medicine according to bioethical principles. This Essay will briefly explore five areas in which the Bush policy is thus instructive: (1) the conceptual understanding of regulation as a legal category; (2) the principles of federalism; (3) the significance of federal funding; (4) the nature of governance according to a particular type of moral principle (e.g., bright line); and (5) the influence of political prudence and respect for pluralism.

Date Posted:March 6, 2006
Last Revised:March 14, 2006
Accepted Paper Series
13 downloads

Abstract:     
For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons with mental disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. Within the legal literature, it appears that the first time disability rights was conceptualized as a human rights issue was as recently as 1993 when, in a groundbreaking article, Eric Rosenthal and Leonard Rubenstein first applied international human rights principles to the institutionalization of people with mental disabilities.

For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. People with mental disabilities who are fortunate enough to live outside of institutions often remain imprisoned by the social isolation they experience, often from their own families. They are not included in educational programs, and they face attitudinal barriers to employment because they have not received the education and training needed to obtain employment or because of discrimination based on unsubstantiated fears and prejudice. Only recently have disability discrimination laws and policies in the United States and elsewhere focused on changing such attitudes and promoting the integration of people with disabilities into our schools, neighborhoods, and workplaces.

The question remains, however: to what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? In Part I of this article, I discuss the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet Bloc nations. In Part II, I discuss developments after these revelations were publicized. In Part III, I weigh the extent to which the post-revelation reforms have been effective and meaningful. In Part IV, I explain the meanings of sanism and pretextuality, and discuss how they relate to the topic at hand. Then, in Part V, I raise questions that have not yet been answered, and that, I believe, should help set the research agendas of those thinking about these important issues.

Date Posted:March 4, 2006
Last Revised:March 20, 2006
Working Paper Series
15 downloads

  • The Puzzle of IVF
    Dena S. Davis
    Cleveland State University - Cleveland-Marshall College of Law

Abstract:     
This essay seeks to address a puzzling element of the current political and legal struggles over abortion in the United States: if, as pro-life activists insist, embryos are morally equivalent to born, living persons, then why do these activists not oppose in vitro fertilization (IVF) as aggressively as they oppose abortion? IVF accounts for a significant number of destroyed embryos. Constitutionally, IVF appears to be a much more vulnerable target than abortion. And yet, legislative and political attempts to attack and restrict IVF are few, while attempts to erode women's capability to terminate pregnancies are a constant feature of our political and legal landscape.

Date Posted:March 4, 2006
Last Revised:March 4, 2006
Working Paper Series
19 downloads

Abstract:     
The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly three years of acrimonious litigation between Michael Schiavo (Ms. Schiavo's husband) and the Schindler family (Ms. Schiavo's parents), a Florida court ordered that nutrition and hydration for Ms. Schiavo be discontinued. Six days after implementation of the court's order, the Florida Legislature passed "Terri's Law," authorizing the Governor, under certain prescribed circumstances, to issue a one-time stay of court-ordered withdrawal of life-sustaining measures, and to appoint a guardian ad litem to review the matter and report back to the executive branch and the chief judge of the relevant Florida court. Pursuant to this new authority, the Governor stayed the order issued by the court, and nutrition and hydration were restored to Ms. Schiavo.

To date, the public debate on this matter has been framed as a conflict between or a balancing of abstract concepts such as "the right to die," "the sanctity of life," and "the rights of the disabled." Little scholarly attention has been paid, however, to an enormously important question at the heart of this matter, namely, what the proper roles of the various branches of government are in a case such as Schiavo's. The proper question is not whether the government has a role in a dispute such as this - it clearly became involved once the matter moved to the state courts - but rather how the government should be involved. Which branch, if any, should have the last word in such a dispute? In these cases, should the relationship between governmental branches be hierarchical or complementary? Which branch of government is best situated to resolve these disputes? This Article, using the Schiavo case as the relevant point of departure, essays to address these questions. Specifically, the questions presented are twofold: (1) Were the Florida Legislature's (and by extension, the Governor's) actions in the Schiavo case consistent with the constitutional principles of separation of powers? (2) If so, did the actions of the executive and legislative branches in this case promote or undermine the purposes and logic of the Florida laws governing end-of-life decisionmaking, taken as a whole? That is, is Terri's Law wise public policy from a structural, governmental view?

Date Posted:March 2, 2006
Last Revised:March 3, 2006
Accepted Paper Series
10 downloads

Abstract:     
A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, I will provide a brief sketch of how the law - both as enacted and interpreted - might ideally serve to promote and defend the goods of autonomy and self-determination. I will thus assess the process and outcome of the Schiavo case by carefully examining the positive law governing the case, as well as the specific evidence relied on by the Florida courts to assess Ms. Schiavo’s actual wishes (the touchstone of autonomy). Moreover, I will contrast the manner in which the Florida courts evaluated this evidence with the seemingly consistent and uniform approach taken by courts from other jurisdictions. I will additionally explore the significance of the Florida courts’ decision to focus the majority of their resources and time on inquiries not oriented towards Ms. Schiavo’s actual wishes, but rather on matters relating to paternalistic considerations, such as her present and future quality of life. In light of the foregoing analysis, I conclude that the Schiavo matter cannot rightly be understood as a victory for self-governance at the end of life. To the contrary, it is instead a cautionary tale of what can happen when the legal preconditions for the exercise of autonomy are absent or ignored.

Date Posted:March 2, 2006
Last Revised:March 10, 2006
Accepted Paper Series
14 downloads

Abstract:     
Neuroscientists have made surprising advances in identifying drugs to dampen the emotional intensity of traumatic memories. Such drugs hold promise for those plagued by painful memories of terrorism, military conflict, assault, car accidents, and natural disasters. Yet some ethicists, including members of the President's Council on Bioethics, claim that memory-dampening drugs may lead us to forget people and events that we are obligated to remember. They also fear that such drugs will reduce the value of eyewitness testimony and help criminals hide their tracks.

After describing the legal and ethical implications of memory dampening, I argue that the Council is unnecessarily alarmed. While memory is an essential component of personal identity and we do sometimes have obligations to remember, the Council's concerns are founded on controversial premises that unjustifiably privilege our natural cognitive abilities. Furthermore, while perhaps we ought sometimes restrict memory dampening, a general prohibition would be unjustified: We have a deeply personal interest in controlling our own minds that entitles us to a certain freedom of memory.

Date Posted:March 2, 2006
Last Revised:March 16, 2006
Working Paper Series
87 downloads

Abstract:     
According to institutional sociology, hospitals will respond to external environmental pressures and adopt Activity-Based-Costing (ABC). This theory overemphasizes conformity and fails to consider the advantages of organizational non-conformance. A conflict of interests between physicians and management leads to physician resistance to accepting ABC. This paper investigates the Spanish government's response to this resistance by creating new public foundation hospitals, and involves a case study of the Alcorcón foundation hospital. Population ecology is offered as an explanation for the emergence of new entities as a result of inert existing entities' resistance to reform.

Date Posted:March 1, 2006
Last Revised:March 1, 2006
Working Paper Series
8 downloads

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