Three central problems which adversely affect the intriguing use, development, and perfection of ... more Three central problems which adversely affect the intriguing use, development, and perfection of the cryonic suspension of individuals are analyzed: the extent to which a physician may be guilty of malpractice in assisting with a suspension – owing to present weaknesses in defining death and coordinate criminal liability attaching theretofor murder; the need for a recognition of suspension; and the present effect of the law's anachronistic treatment of estate devolution upon a cryon – or one undergoing suspension. To meet these difficulties, a partnership is proposed between law and medicine which would respond to challenges to this type of new biology in measured anticipation of the future consequences, rather than with a passive spirit of resignation to things to come.
William and Mary Environmental Law and Policy Review, 2015
This Article investigates whether a right to environmental hedonism can be claimed and compensate... more This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are deficient as a tool for protecting environmental degradations. The Article then studies the parens patriae powers of the government to manage and to protect the environment as a source for securing the environment and finds justification for its exercise through the application and use of the Doctrine of Public Trust. It concludes by examin...
Catholic University of America Columbus School of Law Legal Studies Research Paper Series, 2018
This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unre... more This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.<br><br>The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the fact that strong resuscitation efforts for the ordinary person model is not forthcoming—and its actual morbidity will increase—it remains for the courts to exercise their parens patriae powers to both guide and protect those who are cognitively impaired and who are, consequently, economically disadvantaged.<b...
Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of ... more Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical ...
On November 20, 2007, independent teams of researchers in Wisconsin and Japan announced the achie... more On November 20, 2007, independent teams of researchers in Wisconsin and Japan announced the achievement of a scientific advancement which, over time, may well force a conclusion of the long standing debate on whether embryonic stem cell research is "appropriate" morally.' Specifically, these scientists created human embryonic stem cells from human skin cells, without destroying any human embryos. 2 The hope is that, in due course, these new cells could yield eventually the very same medical promise as embryonic stem cells being developed, as such, to treat heart disease, diabetes, and Parkinson's, and also to create heart and nerve tissue. 3 When this technique was presented for discussion at a meeting sponsored by the Vatican, a spokesman stated that there was "no moral problem with it at all. '' 4 The chief domestic policy adviser to President George W. Bush observed that this new scientific achievement held the promise of allowing medical progress without
In March 1983, the President's Commission for the Study of Ethical Problems Medicine and Biomedic... more In March 1983, the President's Commission for the Study of Ethical Problems Medicine and Biomedical and Behavioral Research issued a groundbreaking report entitled Securing Access to Health Care. 1 The report called for more responsible health care decision-making not only in the private sector but at all governmental levels, "to ensure that every American has a fair opportunity to benefit from it." 2 The extent to which the Constitution imposes a duty upon the government to protect the health and safety of its citizens has been problematic. 3 The conventional position subscribes to the belief that the Constitution is "negative" or "defensive," and that no positive obligation is imposed on the government to act. 4 Consequently, according to this conventional position, the only protection granted by the Constitution is to safeguard individual rights from abridgement by the state. 5 Whereas, the countervailing position recognizes a historical mandate for the states to affirmatively protect the citizenry. 6 In his State of the Union address on January 11, 1944, President Franklin Delano Roosevelt sought to fortify this minority interpretation of Constitutional powers by enunciating what he termed a "[S]econd Bill of Rights." 7 Among the eight rights comprising this new Bill of Rights was a "right to adequate medical care and the opportunity to achieve and enjoy good health." 8 President Roosevelt did not believe that this right could be found in, or derived from, the
We have also proposed abolishing almost 500 Federal advisory and other commissions and boards.. .... more We have also proposed abolishing almost 500 Federal advisory and other commissions and boards.. .. I know that the American people are still sick and tired of Federal paperwork and redtape. Bit by bit we are chopping down the thicket of unnecessary Federal regulations by which Government too often interferes in our personal business. We've cut the public's Federal paperwork load by more than 12 percent in less than a year. And we are not through cutting. President Carter, The State of the Union Address 14 Pres. Documents 90, 94 (Jan. 23, 1978, No. 3) L ast winter, President Carter-in a fireside chat from the White House-assured his listening and viewing audience that, "We will cut down on Government regulations.., and we will make sure that those that are written are in plain English for a change."' On March 23, 1978, he signed Executive Order 12044 entitled, "Improving Government Regulations" which was designed to stoke the fires of his earlier chat 2 and thereby make "Federal regulations clearer, less burdensome, and more cost-effective," 3 and written in such a plain English
In the United States, as well as throughout the world, current demands for organ transplants far ... more In the United States, as well as throughout the world, current demands for organ transplants far exceed the actual supply. Nonconsensual human donations, taken from minors, incompetents and prisoners are regulated carefully by the courts. The Uniform Anatomical Gift Act and the National Organ Transplant Act serve also as statutory frameworks for organ retrievals and allocations and place various restrictions upon each. Altruistically motivated donations at death continue to be an inadequate mechanism for meeting the growing demands of the market. Included among the various approaches to resolving the critical shortage of human organs for transplantation are post mortem harvesting, escheatage, prospective contingent sales and standard death benefit payments — with the latter being perhaps the most attractive in the United States. While ethical and moral principles can help develop a construct for resolving harvesting and transplantation conflicts, they must be tempered — in the final...
Although the traditional means for affording access to goods and services in a capitalistic econo... more Although the traditional means for affording access to goods and services in a capitalistic economy is the free market system, Americans have been unwilling in the pastfor the most partto either condone or accept financial ability as the central means for distributing health care. Responding to this attitude or consensus, the United States Congress established both Medicare and Medicaid programs to deal with the commitment to provide health care services regardless of ability to pay.1 Recent surveys show, however, that while the American public is concerned about the idea or principle of providing not only health care for all who are in need, but catastrophic health care coverage for cancer and cardio-pulmonary problems and long-term care as well, "there is actually a significant limitation on their willingness to pay additional costs" 2 outside of those provided for medical reimbursement coverage in their health insurance policies. Even though the federal government does not control directly total health care delivery spending or, for that matter, hospital budgets it can and does exercise considerable influence through funding of a multitude of health care programs. 3 In this essay, the extent to which cost containment adds to or detracts from the goal of meeting a uniform standard of quality health care delivery will be analyzed and a construct for principled decision making developed. I. Congressional Actions of Rationing In 1983, Congressional action was undertaken to meet the dramatic increase in Medicare program costs by changing the method of
The Journal of contemporary health law and policy, 1994
Judicial Clerk to Judge Karen J. Williams, United States Court of Appeals for the Fourth Circuit.... more Judicial Clerk to Judge Karen J. Williams, United States Court of Appeals for the Fourth Circuit. This article is dedicated to Professor Margaret A. Somerville in friendship and as an acknowledgment not only for her path breaking work in Law, Science, and Medicine, but for her compassion, courage, generosity of spirit, steadfast loyalty, and commitment to teaching the Song of Life vivace as an inspiration to all around her.
Copyright held by the NBRASKA LAW REVIEw. BS, JD, Indiana University; LL.M. Columbia University. ... more Copyright held by the NBRASKA LAW REVIEw. BS, JD, Indiana University; LL.M. Columbia University. Professor of Law, The Catholic University of America. I must acknowledge the igniting influence of Professor Henry G. Manne, Dean of the School of Law at The George Mason ...
co-directors of The Institute, during the preparation of this article in Heidelberg. I also ackno... more co-directors of The Institute, during the preparation of this article in Heidelberg. I also acknowledge with pleasure the high level of professional assistance provided me in my research by Frau Petra Weiler, United Nations Documents Librarian, at the Institute Library and Mr. Joachim Schwietzke, the Institute Librarian-together with the helpful insights of Dr. Lothar Gundling and Dr. Peter Macalister-Smith. It is an added pleasure to recognize the research assistance of Vincent J. Petrozzo, a former student, for his efforts relative to the consideration of interstate domestic actions for transboundary pollution. Naturally, the views and positions which I have taken in this article are solely my own. "The acid rain problem is in many respects so subtle, and the research so new and complex, that a clear picture of its nature and precise impacts will probably not be available for many years." ' Mostafa K. Tolba, Director of the United Nations Environmental Programme, observed that there are basically two aspects to current environmental concerns over transboundary pollution: determination by consensus of the likely effects specific pollutants have on the environment; and acceptance of legal responsibility for causing either a direct or indirect release of those pollutants.' There are three major ways to reduce the sulfur oxide content of combustion gases: by using fuels which have low sulfur content, by desulfurizing fuels before they are burned or by desulfurizing stack gases
The legal and moral issues associated with two developing areas of biomedicine, cloning and cryon... more The legal and moral issues associated with two developing areas of biomedicine, cloning and cryonics are examined by considering the practical benefits to society of developing, perfecting and utilizing the process of cloning. The major legal problem raised from cryonics is determining the time at which a cryonically suspended individual dies, thus concluding that these difficult problems in biomedicine are to be resolved by striking a careful balance between individual need and social good.
Three central problems which adversely affect the intriguing use, development, and perfection of ... more Three central problems which adversely affect the intriguing use, development, and perfection of the cryonic suspension of individuals are analyzed: the extent to which a physician may be guilty of malpractice in assisting with a suspension – owing to present weaknesses in defining death and coordinate criminal liability attaching theretofor murder; the need for a recognition of suspension; and the present effect of the law's anachronistic treatment of estate devolution upon a cryon – or one undergoing suspension. To meet these difficulties, a partnership is proposed between law and medicine which would respond to challenges to this type of new biology in measured anticipation of the future consequences, rather than with a passive spirit of resignation to things to come.
William and Mary Environmental Law and Policy Review, 2015
This Article investigates whether a right to environmental hedonism can be claimed and compensate... more This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are deficient as a tool for protecting environmental degradations. The Article then studies the parens patriae powers of the government to manage and to protect the environment as a source for securing the environment and finds justification for its exercise through the application and use of the Doctrine of Public Trust. It concludes by examin...
Catholic University of America Columbus School of Law Legal Studies Research Paper Series, 2018
This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unre... more This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.<br><br>The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the fact that strong resuscitation efforts for the ordinary person model is not forthcoming—and its actual morbidity will increase—it remains for the courts to exercise their parens patriae powers to both guide and protect those who are cognitively impaired and who are, consequently, economically disadvantaged.<b...
Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of ... more Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical ...
On November 20, 2007, independent teams of researchers in Wisconsin and Japan announced the achie... more On November 20, 2007, independent teams of researchers in Wisconsin and Japan announced the achievement of a scientific advancement which, over time, may well force a conclusion of the long standing debate on whether embryonic stem cell research is "appropriate" morally.' Specifically, these scientists created human embryonic stem cells from human skin cells, without destroying any human embryos. 2 The hope is that, in due course, these new cells could yield eventually the very same medical promise as embryonic stem cells being developed, as such, to treat heart disease, diabetes, and Parkinson's, and also to create heart and nerve tissue. 3 When this technique was presented for discussion at a meeting sponsored by the Vatican, a spokesman stated that there was "no moral problem with it at all. '' 4 The chief domestic policy adviser to President George W. Bush observed that this new scientific achievement held the promise of allowing medical progress without
In March 1983, the President's Commission for the Study of Ethical Problems Medicine and Biomedic... more In March 1983, the President's Commission for the Study of Ethical Problems Medicine and Biomedical and Behavioral Research issued a groundbreaking report entitled Securing Access to Health Care. 1 The report called for more responsible health care decision-making not only in the private sector but at all governmental levels, "to ensure that every American has a fair opportunity to benefit from it." 2 The extent to which the Constitution imposes a duty upon the government to protect the health and safety of its citizens has been problematic. 3 The conventional position subscribes to the belief that the Constitution is "negative" or "defensive," and that no positive obligation is imposed on the government to act. 4 Consequently, according to this conventional position, the only protection granted by the Constitution is to safeguard individual rights from abridgement by the state. 5 Whereas, the countervailing position recognizes a historical mandate for the states to affirmatively protect the citizenry. 6 In his State of the Union address on January 11, 1944, President Franklin Delano Roosevelt sought to fortify this minority interpretation of Constitutional powers by enunciating what he termed a "[S]econd Bill of Rights." 7 Among the eight rights comprising this new Bill of Rights was a "right to adequate medical care and the opportunity to achieve and enjoy good health." 8 President Roosevelt did not believe that this right could be found in, or derived from, the
We have also proposed abolishing almost 500 Federal advisory and other commissions and boards.. .... more We have also proposed abolishing almost 500 Federal advisory and other commissions and boards.. .. I know that the American people are still sick and tired of Federal paperwork and redtape. Bit by bit we are chopping down the thicket of unnecessary Federal regulations by which Government too often interferes in our personal business. We've cut the public's Federal paperwork load by more than 12 percent in less than a year. And we are not through cutting. President Carter, The State of the Union Address 14 Pres. Documents 90, 94 (Jan. 23, 1978, No. 3) L ast winter, President Carter-in a fireside chat from the White House-assured his listening and viewing audience that, "We will cut down on Government regulations.., and we will make sure that those that are written are in plain English for a change."' On March 23, 1978, he signed Executive Order 12044 entitled, "Improving Government Regulations" which was designed to stoke the fires of his earlier chat 2 and thereby make "Federal regulations clearer, less burdensome, and more cost-effective," 3 and written in such a plain English
In the United States, as well as throughout the world, current demands for organ transplants far ... more In the United States, as well as throughout the world, current demands for organ transplants far exceed the actual supply. Nonconsensual human donations, taken from minors, incompetents and prisoners are regulated carefully by the courts. The Uniform Anatomical Gift Act and the National Organ Transplant Act serve also as statutory frameworks for organ retrievals and allocations and place various restrictions upon each. Altruistically motivated donations at death continue to be an inadequate mechanism for meeting the growing demands of the market. Included among the various approaches to resolving the critical shortage of human organs for transplantation are post mortem harvesting, escheatage, prospective contingent sales and standard death benefit payments — with the latter being perhaps the most attractive in the United States. While ethical and moral principles can help develop a construct for resolving harvesting and transplantation conflicts, they must be tempered — in the final...
Although the traditional means for affording access to goods and services in a capitalistic econo... more Although the traditional means for affording access to goods and services in a capitalistic economy is the free market system, Americans have been unwilling in the pastfor the most partto either condone or accept financial ability as the central means for distributing health care. Responding to this attitude or consensus, the United States Congress established both Medicare and Medicaid programs to deal with the commitment to provide health care services regardless of ability to pay.1 Recent surveys show, however, that while the American public is concerned about the idea or principle of providing not only health care for all who are in need, but catastrophic health care coverage for cancer and cardio-pulmonary problems and long-term care as well, "there is actually a significant limitation on their willingness to pay additional costs" 2 outside of those provided for medical reimbursement coverage in their health insurance policies. Even though the federal government does not control directly total health care delivery spending or, for that matter, hospital budgets it can and does exercise considerable influence through funding of a multitude of health care programs. 3 In this essay, the extent to which cost containment adds to or detracts from the goal of meeting a uniform standard of quality health care delivery will be analyzed and a construct for principled decision making developed. I. Congressional Actions of Rationing In 1983, Congressional action was undertaken to meet the dramatic increase in Medicare program costs by changing the method of
The Journal of contemporary health law and policy, 1994
Judicial Clerk to Judge Karen J. Williams, United States Court of Appeals for the Fourth Circuit.... more Judicial Clerk to Judge Karen J. Williams, United States Court of Appeals for the Fourth Circuit. This article is dedicated to Professor Margaret A. Somerville in friendship and as an acknowledgment not only for her path breaking work in Law, Science, and Medicine, but for her compassion, courage, generosity of spirit, steadfast loyalty, and commitment to teaching the Song of Life vivace as an inspiration to all around her.
Copyright held by the NBRASKA LAW REVIEw. BS, JD, Indiana University; LL.M. Columbia University. ... more Copyright held by the NBRASKA LAW REVIEw. BS, JD, Indiana University; LL.M. Columbia University. Professor of Law, The Catholic University of America. I must acknowledge the igniting influence of Professor Henry G. Manne, Dean of the School of Law at The George Mason ...
co-directors of The Institute, during the preparation of this article in Heidelberg. I also ackno... more co-directors of The Institute, during the preparation of this article in Heidelberg. I also acknowledge with pleasure the high level of professional assistance provided me in my research by Frau Petra Weiler, United Nations Documents Librarian, at the Institute Library and Mr. Joachim Schwietzke, the Institute Librarian-together with the helpful insights of Dr. Lothar Gundling and Dr. Peter Macalister-Smith. It is an added pleasure to recognize the research assistance of Vincent J. Petrozzo, a former student, for his efforts relative to the consideration of interstate domestic actions for transboundary pollution. Naturally, the views and positions which I have taken in this article are solely my own. "The acid rain problem is in many respects so subtle, and the research so new and complex, that a clear picture of its nature and precise impacts will probably not be available for many years." ' Mostafa K. Tolba, Director of the United Nations Environmental Programme, observed that there are basically two aspects to current environmental concerns over transboundary pollution: determination by consensus of the likely effects specific pollutants have on the environment; and acceptance of legal responsibility for causing either a direct or indirect release of those pollutants.' There are three major ways to reduce the sulfur oxide content of combustion gases: by using fuels which have low sulfur content, by desulfurizing fuels before they are burned or by desulfurizing stack gases
The legal and moral issues associated with two developing areas of biomedicine, cloning and cryon... more The legal and moral issues associated with two developing areas of biomedicine, cloning and cryonics are examined by considering the practical benefits to society of developing, perfecting and utilizing the process of cloning. The major legal problem raised from cryonics is determining the time at which a cryonically suspended individual dies, thus concluding that these difficult problems in biomedicine are to be resolved by striking a careful balance between individual need and social good.
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