Wednesday, May 9, 2012
With the close of the spring semester, the thoughts of most law professors turn to scholarship, to that “big” summer writing project. Not me. My summer is, instead, committed to a series of smaller research and writing projects.
Over the past two years, I have found myself publishing more in medical and bioethics journals, and less in traditional law reviews. For example, of nine (9) new articles that I have published, so far in 2012, only one was in a traditional law review. The others were in book chapters, JAMA, Chest, Am. J. Bioethics, and other journals. In 2013, I plan to tip the balance back toward traditional law reviews (and a book: Pulling the Plug: The Legal History of Medically Managed Death). But I want to comment on the largely non-traditional composition of my current scholarship portfolio.
While law reviews are targeted primarily to other law professors (and sometimes to lawyers and judges), medical and bioethics journals are targeted primarily to “front line” health care providers. I enjoy writing for this audience. After all, much of health care law is implemented, on a day-to-day basis, directly by medical providers without the involvement of lawyers. I hope that my scholarship helps these providers better understand the law for which they (alone) are primarily responsible.
Let me provide a specific example. This winter, I published an article titled “The Unbefriended: Making Healthcare Decisions for Patients without Surrogates” in The Journal of Clinical Ethics. The “unbefriended” or “unrepresented” patient is one of the most vulnerable in society. Unfortunately, in healthcare facilities across the United States, there are thousands of incapacitated patients and residents who have no reasonably available surrogate. Who can consent to needed medical treatment for these individuals? Who should? The legally authorized options vary significantly from jurisdiction to jurisdiction. Furthermore, frustrated with the practicability of the main default option, guardianship, many facilities have developed various extralegal mechanisms. Other facilities, sticking within the letter of the law, violate their ethical and medical obligations to unbefriended patients. To give guidance to these facilities, I synthesized and organized the complete range of legal and non-legal approaches.
I could have published this manuscript as a law review article. Indeed, at over 20,000 words, The Journal of Clinical Ethics published it in two parts. If traditional law reviews were better indexed on Medline, then I might not have made this placement decision. But I wanted to reach the clinicians for whom the issue was most relevant.