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Keystone Bituminous Coal, First English, Nollan: A Framework for Accommodation?
Full text linkThis article focuses on three Supreme Court cases that produced important developments for land use laws and redefined property rights: Keystone Bituminous Coal Association v. De Benedictis, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, and Nollan v. California Coastal Commission. The article discusses these cases and the implications they have for both landowners and regulators. Keystone favors property regulators while First English and Nollan favor property owners, but the article emphasizes that when these cases are read together what emerges is a sense that both landowners and regulators have important common interests which the American property law system can accommodate. The article suggests alternative approaches for future developments in the land use regulatory process. Finally, the article concludes that the best response to this trilogy of cases is the effective use of an early review system, along with regulations carefully tailored to specific land use policies. This would enable municipalities to plan and regulate land in comprehensive, flexible, and innovative ways
Competitive Reform in Health Care: The Vulnerable Revolution
Full text linkThis article, written at the dawn of the era of competitive reform in health care examines the case and prospects for the introduction of competition in health care delivery and financing. It observes the failures of the ancienne regime of fee for service payment and professional sovereignty and discusses the benefits of market-oriented policy. Its contribution, still salient today, is the lesson that competition cannot succeed without regulation. It identifies legislative, professional, and cultural hurdles to effective implementation of competitive norms and policies that have impeded the success of competition policy in health care
The Death-Prolonging Procedures Act and Refusal of Treatment in Missouri
Full text linkMissouri’s Death-Prolonging Procedures Act of 1985 represents an effort to ensure that an individual’s choices regarding medical treatment will be honored, even if the individual becomes incompetent. This article considers the Act’s limiting structure and examines the effect of these limits on the effectiveness of the Act in providing a legal right to refuse medical treatment.
Following an introduction, Part II describes the limiting structure of the Act. Part III considers the way in which the Act’s limitations relate to its binding effect.
First, an individual’s declaration applies only to death-prolonging procedures and only if the individual is terminally ill. This definitional approach requires the attending physician to make complex medical and personal judgments, but also imposes constraints on the physician’s discretion.
Second, the Act excludes from death-prolonging procedures those procedures that provide comfort care or alleviate pain and those that provide nutrition and hydration. The article notes that in certain circumstances, withholding nutrition or hydration may be consistent with the patient’s best interests. Courts have the task of developing a legal framework for this broadly stated limitation, and should uphold a patient’s express directive to withhold nutrition or hydration in certain circumstances.
A third limitation allows providers to act contrary to a declaration for a serious reason therefore, consistent with the best interest of the declarant. The article explains that this narrow limitation does not grant the provider broad discretion to ignore a declaration based on personal beliefs or the wishes of the declarant’s spouse or family. Except in very limited circumstances, guardianship proceedings are not a sufficient basis to act contrary to a declaration.
Fourth and finally, the Act may provide statutory penalties to deter noncompliance with valid declarations. The Act describes noncompliance as unprofessional conduct. Professional boards should treat such “unprofessional conduct” as synonymous with the “misconduct” contemplated in the Missouri Medical Practice Act and Nurse Practice Act, thereby establishing noncompliance with declarations as grounds for disciplinary actions.
Part IV addresses the scope of the Act. The Act creates one method by which the rights of the incompetent may be exercised, but it expressly states that it will not impair or supersede those rights. Limitations in the statute narrow the scope of the method employed rather than the underlying right itself
Criminal Justice Issues in Revolutionary Nicaragua
Full text linkIn this article, the author discusses his experiences traveling to Nicaragua in May 1985, as a part of a group of American lawyers and law professors invited by the Nicaraguan Association of Democratic Justice to consult on the judicial process, as well as a revolutionary struggle within the Nicaraguan institutions responsible for criminal justice. This article addresses current criminal procedure, special tribunals, and popular anti-Somocista tribunals. It also discusses a pilot project geared to improve criminal justice issues in Nicaragua
State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions
Full text linkThe use of intermediate sanctions to enforce nursing home regulations marks a revolutionary and innovative legislative step to achieve, in addition to punishment, also rehabilitation and deterrence goals. This article evaluates the implementation of intermediate sanctions by the states, highlighting the ways in which similarities and differences in state statutes impacts effective implementation.
The article begins by considering legal challenges to state intermediate sanctions, including a constitutional challenge to the power of states to specify general standards for nursing homes and a notice challenge in light of statutory vagueness.
Next the article considers specific intermediate sanctions and makes recommendations to enhance the effectiveness of each sanction. Civil fines are among the most effective of the intermediate sanctions, but it is important that state agencies avoid delay in the imposition of fines and raise fine prices for repeat violations. Receiverships are also powerful intermediate sanctions. State agencies must be prepared to develop a pool of private receivers, fund them, and clearly identify the scope and liabilities of the receivership. Personal rights of nursing home residents may be enforced through a statutory cause of action, buffered by participation of the public and the media. Statutes may also authorize states to suspend admissions in order to remedy habitual and significant violations.
Finally, the article examines the role of the federal government in light of the states’ implementation of intermediate sanctions
Displacement and Urban Reinvestment: A Mount Laurel Perspective
Full text linkThis article discusses the continuing national debate concerning the responsibility that local governments should accept when residents are forced to leave their homes as a result of reinvestment activities encouraged by the cities and funded in part with public funds. The author explains the many different forms that reinvestment displacement may take and traces the legislative and judicial response to this issue. Despite what the author refers to as a considerable amount of buck passing, the article points out resources that are being made available to combat displacement. The article highlights the Supreme Court of New Jersey opinion in the Mount Laurel case that reaffirmed the moral and legal principle that local governments must consider the housing needs of affected citizens when they use the police power to regulate land use. The article concludes by suggesting that minimizing displacement can be accomplished if cities encourage reinvestment and place a higher priority on the interest of the long term residents of reinvestment areas. The major responsibility of such a task lies with state and local government who have developed the highly sophisticated reinvestment techniques that draw heavily on their police power
MAUL: An OCLC Union List of Legal Periodicals
Full text linkThe Mid-America Law School Library Consortium is an incorporated association of eighteen academic law libraries formed in 1980 to promote cooperation among its members. The organization includes libraries in Arkansas, Illinois, Iowa, Kansas, Missouri, Nebraska, and Oklahoma. Within the framework of the organization\u27s by-laws, the group engages in such varied cooperative activities as telefacsimile document delivery, collection development, staff exchanges, and union listing. The union list of periodicals on OCLC was authorized by the Consortium directors in June 1982. (Two libraries opted not to participate in the OCLC union list project, leaving sixteen involved.) The four-letter symbol chosen to identify the union list online is MAUL.
Off-line union listing was an early activity of the Mid-America Consortium that helped fulfill its resource-sharing goals. A printed union list of microforms and one of looseleaf services have been produced, and a Canadian/Australian list is under development. In early 1982, the library directors of the Consortium became interested in the possibility of using the OCLC union listing capability to create a union list of periodicals. In order to do this, the Consortium had to select a single network through which to join. Eileen Searls, Director of the Saint Louis University Law Library and President of the Consortium, investigated the packages offered by the networks to which the various libraries belonged. Four net-works were possible choices: Amigos, BCR, ILLINET, and MIDLNET. At the Consortium meeting in Detroit in June 1982, the Board of Directors voted to join through Amigos. The Consortium\u27s initial contract with Amigos included one-time costs of 34 per hour for profiling. These costs were prorated. The Consortium pays the annual membership fee, which was $739 for sixteen libraries in 1983/84. Each library is billed for the charges associated with local data records directly by its own network. This venture was the first cross-network OCLC union list
Nursing Home Receiverships: Design and Implementation
Full text linkThe enforcement of legal standards governing nursing home care and safety involves complex determinations due to the precarious conditions of most residents and the vast shortage of nursing home beds. This is particularly true when residents must be transferred. This article advocates the interim measure of statutory nursing home receiverships to protect the health and safety of residents and the nursing home property while determinations regarding sanctions or compliance are being made.
Section II examines the statutory receivership provisions of four states and explains why such an approach is best suited for the effective enforcement of standards while also protecting residents from life-threatening transfers and preventing facilities from closing. In Section III, the article documents the path of the Village Nursing Home in New York City from a substandard facility to a high-quality, community-based nursing home through a statutory receivership model. Finally, Section IV analyzes the Village Nursing Home example, identifying difficulties in the implementation of a statutory receivership and also the factors contributing to its success.
The article concludes by identifying flaws of statutory receiverships. Through court orders, courts play an important role in providing a remedy to such flaws, but community participation and interest in nursing homes is also integrally related to ensuring nursing home care and safety
Local Government in Missouri: The Crossroads Reached
Full text linkThis article addresses the perceived inadequacy of the State of Missouri’s statutory tools to modernize local government. Some of the more extreme examples of conflicting and obsolete provisions in the laws affecting local government in Missouri are discussed. In many instances these obsolete statutes severely restricted the operations of municipalities. The article also looks at laws relating to special benefit districts, problems in county government, and the issue of home rule. Many of the concerns addressed in this article have to do with the overlap that exists among political subdivisions within a given area, such as counties, cities, and special districts. The article suggests that a solution must take into account the complex inter-relationships among these subdivisions in order to achieve coordination while preserving a truly local and representative system of government