Law Faculty Articles

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Now showing 1 - 10 of 730
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    A Framework for Tribal Public Health Law
    (2019) Hoss, Aila
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    Abortion and Compelled Physician Speech
    (Wiley, 2015) Orentlicher, David; Robert H. McKinney School of Law
    As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment precludes the government from forcing individuals to voice the government’s views. On the other hand, legislatures and courts can insist that physicians properly explain to patients about their medical conditions and potential treatments so patients can make informed decisions about their health care. When taking care of patients, doctors assume a duty to speak, as well as a duty to speak responsibly. Ordinarily, the doctrines of free speech and informed consent coexist without much difficulty. But as states have expanded the kinds of information that abortion providers must disclose to pregnant women, First Amendment concerns have become increasingly salient. In this article, I will use several examples of speech mandates for abortion and other health care services to identify principles for distinguishing between legitimate regulation of the informed consent process and illegitimate interference with the freedom of speech. First, speech mandates should be permissible when they provide material information to patients about their health care decisions. If the state is trying to ensure that patients are fully informed, the mandates should be allowed. As a corollary, the information must be truthful and not be misleading. The goal is to inform not to misinform. Second, speech mandates that pertain to moral considerations should not be permitted. Rather than informing the patient’s decision, these mandates force the physician or other health professional to espouse the state’s ideology. Courts and legal scholars have proposed other ways to distinguish permissible from impermissible mandates (e.g., whether the government takes sides, manipulates emotions, or uses graphic images). However, these additional distinctions raise their own concerns and should not be needed. If courts strictly apply the requirements that compelled speech pertain to medical facts about abortion and its alternatives rather than abortion ideology and that the compelled speech be truthful and not misleading, then the interests of pregnant women and their physicians should be protected.
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    Access to Knowledge in India
    (2011) Shaver, Lea
    This essay is a preview of the author's upcoming book Access to Knowledge in India: New Research on Intellectual Property, Innovation, and Development, an edited volume which contains contributionsfrom various scholars on the access to knowledge alongside development and trade. While the essay seeks to bring together views and insights gleaned from various chapters of the book, the author simultaneously pushes forward her argument concerning the role that courts have to play in toning down excessive intellectual property protection using the language of human rights. In particula, the author argues that constitutional law has the poten tial tofurther socioeconomic rights which are affected by intellectual property protection. The author feels that Indian constitutional litigation has taken the right step in this direction and is a model for courts in other jurisdictions as well as for international norm-setting.
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    The Accidental Administrative Law of the Medicare Program
    (2015) Kinney, Eleanor D.; Robert H. McKinney School of Law
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    Achieving Reproductive Justice in the International Surrogacy Market
    (2012) Mohapatra, Seema
    Men and women are increasingly seeking surrogacy arrangements outside of their home country, mainly due to legal restrictions or the high cost of surrogacy in their home countries. Global surrogacy raises numerous issues including the economic status of women involved in surrogacy arrangements, poverty, issues related to what motherhood means and how women from different ethnic, socioeconomic, class, and national backgrounds interact in the global surrogacy market. This essay briefly analyzes whether reproductive justice exists in the current international surrogacy market.
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    Acquiring Innovation
    (2008) Nguyen, Xuan-Thao; Maine, Jeffrey A.
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    The Adaptation of U.S. Tax Treaties to Changing Business Forms - a Case Study of Hybrid Entities
    (2008) Hoffer, Stephanie R.; Kemp, Matthew T.; Postlewaite, Philip F.
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    Administrative and Court Reform in Central and Eastern Europe
    (2003) Emmert, Frank
    The pre-accession programmes of the European Union and the candidate coun- tries have focused heavily on law reform. Only relatively recently, it was recognised that successful administrative and court reform would be just as necessary in order to achieve the desired goals, namely that the candidates would eventually be able to take on their obligations as new members of the Union. Unfortunately, it has now become evident that it is easier to write new laws than to get them properly applied in every day practice. This article describes a number of cases to illustrate the problem. It shows that administrators and judges in Central and Eastern Europe have significant difficulties with Western working methods, specifically the application of international norms in the national legal order, due process and procedural safeguards, treatment ofprecedents, resolution of ambi- guities and lacunae in the law, etc., which may in turn result in unjust and sometimes absurd application of laws. These difficulties cannot be resolved merely by organising ever more training courses and other theoretical programmes. The author claims that the majority of efforts promoting administrative and court reform applied so far have ren- dered only meager results. Therefore, additional and more creative measures have to be designed and implemented and have to be continued for years beyond accession of most of these countries to the EU in 2004. Otherwise, rule of law deserving its name will not materialise in the new Member States. The author concludes by offering some ideas based on many years of experience in the region.
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    Administrative Law: 1983 Survey of Recent Developments in Indiana Law
    (1984) Wright, R. George
    The Board of Editors of the Indiana Law Review is pleased to publish its eleventh annual Survey of Recent Developments in Indiana Law. This survey covers the period from May 1, 1982, through May 1, 1983. It combines a scholarly and practical approach in emphasizing recent developments in Indiana case and statutory law. Selected federal case and statutory developments are also included. No attempt has been made to include all developments arising during the survey period or to analyze exhaustively those developments that are included.