HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Saturday, March 25, 2006

Latest Public Health Downloads from SSRN

Here are the March papers that have been posted (to date) on the Social Science Research Network's Public Health Law website (in reverse chronological order).  Links are to the Abstract page; full papers can usually be downloaded through links found on there.

Abstract:     
Security matters to health. Crime victimization causes death, injury and illness. Injury or death is an occupational hazard for police. The criminal justice system causes injury and illness in the course of attempting to punish and deter crime. Policing policies and practices can have a significant impact on the ability of other public and private agencies to successfully implement health interventions. Police themselves routinely deal with people who have serious health needs, and even on occasion are the primary agents implementing health interventions. The health consequences of law enforcement are far from trivial, making it important for health to be integrated as a matter of concern into criminological research and law enforcement practice. The link between health and policing, and the significance of health outcomes, should be more fully accepted in criminology. Likewise, the governance of security is an important matter for public health research and practice.

If health outcomes are seen as an important product of security arrangements, conventional policing can be reconfigured to reduce negative health consequences and promote positive ones. There are, however, limits to the extent that state-centered policing can be expected to change. The theory of nodal governance and the programmatic work of innovators in the "governance of security" movement offer useful insights into the coordination of health and security outside the state-centered policing framework. Experience with both health and security-based schemes shows the promise of "microgovernance" strategies that promote health and security by mobilizing local knowledge and capacity among poor people with historically poor relations with conventional police systems. Serious practical and theoretical questions can be raised about the long-term prospects of these strategies, particularly the capacity of small groups of poor people to manage events flowing from more generalized and more powerful sources. While valid in some respects, however, such criticism misses the "democratic experimentalism" as the heart of the governance of security approach.

Date Posted:March 24, 2006
Last Revised:March 24, 2006
Accepted Paper Series
2 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:     
During the mid-19th century, the United States acquired Texas and large parts of Mexican territory with the vast Mexican-born population. This paper considers the biological standard of living of the part of this population that was incarcerated in American prisons. We use their physical stature as a proxy for their biological welfare. These data confirm earlier results which showed that adult heights tended to stagnate in Mexico during the late-19th century despite considerable social and political turmoil. While there is some evidence of a decline in height among youth, the decline is slight (<1 cm). As in other 19th century samples, farmers were the tallest. Americans were taller than Mexican prisoners by about 2 cm.

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

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:     
Evolutionary biology - or, more precisely, two (purported) applications of Darwin's theory of evolution by natural selection, namely, evolutionary psychology and what has been called “human behavioral biology" - is on the cusp of becoming the new rage among legal scholars looking for "interdisciplinary" insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise.

Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call "the Environmental Gap Objection"). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, , and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proferred. In the concluding section of the article, we turn directly to the work of Professor Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.

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

Abstract:     
This research studies the perception of the risks associated with impaired driving - probability of being apprehended or of having an accident - and the relation between the perception of risks and driving behavior. The most important determinants of perceptual biases are age, an accumulation of violations in the year preceding the survey, being a non-drinker, knowledge of the legal alcohol limit for driving, opinion about zero tolerance for impaired driving, and family income. Perceptual biases are shown to influence driving behavior, as captured by drivers' accumulated violations, demerit points and bodily injury accidents, in the years preceding and in the year following the survey. In conclusion, we analyze the results in terms of public policy for road safety.

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

Abstract:     
With an impending Avian influenza or bird flu pandemic, the issue of patents and public health has once again taken centre stage. Oseltamivir (known by its brand name 'Tamiflu'), a patented antiviral pill, has emerged as the world's first line of defence against bird flu. A key priority for most nations is to create sufficient stockpiles of this pill that can then be easily distributed and administered during a pandemic. Keeping this end in mind, this paper explores the patent position in India and looks at ways to work around a patent, should one issue in future. The paper recommends various strategies for creating an optimal and affordable stockpile and calls on the government to take a more definite stand in the matter.

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:     
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

Abstract:     
This paper attempts to present a comprehensive and coherent picture of the role performed by science under the SPS Agreement and SPS case law. It argues that the approach adopted by the Appellate Body is predominantly based on a technical paradigm, supplemented, however, with some considerations arising from other paradigms. The paper argues that the approach adopted in the case law is generally compatiblewith the text of the SPS Agreement and provides a coherent SPS system. However, it also identifies certain areas which lack coherence, as certain standards seem to violate the right of the member states to establish an appropriate level of protection. These are: ascertainability of the risk as a precondition for valid risk assessment; strict specifity of the risk assessment in low-risk situations; the proportionality between the risk identified and the SPS measure; the notion of negligible risks; and the concept of likelihood in the quarantine risk assessments. The paper claims that these standards cannot be generally applied in SPS disputes as, in certain situations, they will result in the violation of the right of member states to establish an appropriate level of SPS protection. Finally, a number of specific issues are highlighted which require further clarification in case law, such as the issue of the quality of minority scientific opinions and the relationship between the insufficiency of scientific evidence and scientific uncertainty. The paper suggests that the ultimate role ascribed to science under the SPS Agreement can be assessed only after an interpretation of those issues is provided by future case law.

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

Abstract:     
An unexplained death in custody represents an important focal point for public scrutiny of the criminal justice system, especially when excess deaths occur in those of minority ethnic descent. Sickle cell anaemia is a serious inherited blood disorder disproportionately affecting minority ethnic groups. Sickle cell trait is the genetic carrier state and not an illness. The evidence suggests that the treatment of sickle cell in the criminal justice system is twofold. Justice authorities have misused sickle cell trait to explain away ten sudden deaths, often associated with forced restraint, of African-Caribbean people in custody. Meanwhile, seven deaths have been attributable to lack of provision of health care for those prisoners suffering from the illness sickle cell anaemia.

Date Posted:March 17, 2006
Last Revised:March 17, 2006
Accepted Paper Series

  • 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
1 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

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.

University of Toronto - Faculty of Law and University of Toronto - Faculty of Law
Date Posted:March 10, 2006
Last Revised:March 10, 2006
Accepted Paper Series

Abstract:     
Political reorganizations like that of the National Performance Review in the United States fundamentally alter hierarchical relations within public agencies. This study includes a set of formal exercises to examine two logical consequences of reinvention: the increased likelihood of coordination failures, and the reduction in political leaders’ hierarchical status in the organization. These effects are discussed in the context of a substantial change in the public organization of health services: the alteration of the U.S. Department of Health and Human Services’ structure. This study shows that reinvention fundamentally alters the power and status of political appointees, the standing of top leadership, and the likelihood of conflict resolution within the organization.

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

Abstract:     
Political reorganizations like that of the National Performance Review in the United States fundamentally alter hierarchical relations within public agencies. This study includes a set of formal exercises to examine two logical consequences of reinvention: the increased likelihood of coordination failures, and the reduction in political leaders’ hierarchical status in the organization. These effects are discussed in the context of a substantial change in the public organization of health services: the alteration of the U.S. Department of Health and Human Services’ structure. This study shows that reinvention fundamentally alters the power and status of political appointees, the standing of top leadership, and the likelihood of conflict resolution within the organization.

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

Abstract:     
The "Three R's" seek to reduce, refine, and replace the use of animals in experiments. The Three R's have been accepted by researchers who use animals in experiments and by animal welfare advocates who argue in favor of regulating animal use rather than abolishing it. The Three R’s are incorporated into the federal Animal Welfare Act, and over the past twenty years have to a considerable degree become the primary legal and non-legal mechanism for regulating animal experimentation.

This article takes a systematic and critical look at the Three R's and concludes that they are ineffective in preventing unnecessary animal suffering even if animal experimentation is generally regarded as legitimate. The Three R's fail for three main reasons. First, they do not allow for challenges to a researcher's purpose in conducting experiments that will use animals, even if that purpose is questionable. Second, loopholes in the Animal Welfare Act have allowed researchers to avoid application of the Three R's in practice. Finally, the Three R's have no application to new and emerging areas of biomedical research that have the potential to greatly escalate the use of animals in experiments, including stem cell research, cloning, xenotransplantation, genetic modification, and bioterrorism defense.

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

Abstract:     
In reviewing patent applications and prior art references in biotechnology, the patent system often focuses on the extent to which these documents explicitly disclose structural formulae for specific nucleic acid molecules. This Article argues that this approach to patentability has caused well-known generic and methodological references to be disregarded as potentially relevant prior art. To provide empirical support for this doctrinal argument, this Article also describes the creation and publication of an “artfully drafted” prior art reference that provides an enabling disclosure of more than 11 million DNA sequences on CD-ROM and has already been cited in a number of patents and patent applications. The reference is still too small to offer a complete solution to the problems caused by the patent system’s approach. Because the size of the reference is constrained only by the capacity of the CD-ROM, however, the reference provides a “proof of concept” that may be generalized and extended as more capacious storage media become available.

Date Posted:March 3, 2006
Last Revised:March 3, 2006
Accepted Paper Series
13 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
9 downloads

Abstract:     
This book chapter provides a gender perspective on the international human rights treaty provisions that are of particular importance to female refugees. These treaties address a range of issues that female refugees face in relation to their rights, including rights violations that take place during flight and in refugee camps; difficulties encountered in the asylum application and adjudication process; and problems refugees face once settled that result from discrimination by both state and non-state actors in such areas as housing, employment, and education. The pertinent General Comments of the committees that monitor implementation of these treaties are examined, as are the concluding observations and recommendations under the reporting procedure of the treaty regime, and relevant jurisprudence under the individual complaint procedures established by four of the treaties.

Underlying the rights in all these treaties is the prohibition of discrimination on the basis of sex and the right to equal protection of the law. This paper recommends that to protect these rights, states should take into account the gender-related ways in which female refugees and asylum seekers experience the deprivation of rights. Rape and other sexual violence, gender-specific manifestations of racial and ethnic prejudice, limitations on freedom of movement on the basis of sex, violations of reproductive rights, and inequality in the economic realm are just some of the gender-related issues faced by female refugees. States should take account of these forms of rights violations in developing and implementing programs to fulfill their obligations under the international human rights treaties. States should also recognize the diversity among female refugees as they develop their programs in order to ensure maximum effectiveness.

Date Posted:March 2, 2006
Last Revised:March 20, 2006
Accepted Paper Series

Abstract:     
This article develops the first measures of age-industry job risks to examine the age variations in the value of statistical life. Because of the greater risk vulnerability of older workers, they face flatter wage-risk gradients than younger workers, which we show to be the case empirically. Accounting for this heterogeneity in hedonic market equilibria leads to estimates of the value of statistical life-age relationship that follows an inverted-U shape. The estimates of the value of statistical life range from $6.4 million for younger workers to a peak of $9.0 million for those age 35-44, and then a decline to $3.7 million for those age 55-62. The decline of the estimated VSL with age is consistent with there being some senior discount in the Clear Skies Initiative analysis.

Date Posted:March 2, 2006
Last Revised:March 4, 2006
Working Paper Series
21 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
13 downloads

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