SelectedWorks @ Chapman University Dale E. Fowler School of Law
Not a member yet
1539 research outputs found
Sort by
The Federal Death Penalty and the Constitutionality of Capital Punishment
No full textThe federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. The explanation for its importance lies with its role in resolving the permissible uses of the death penalty under the Eighth Amendment. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Constitution. In rejecting capital punishment for retarded offenders, juvenile offenders and child rapists, the Court in each case noted that federal death-penalty statutes would have conferred protection against a federal death prosecution. This history suggests that the federal statutes could have special influence with the Court in its future proportionality rulings in capital cases. For observers who would like to see the Court use proportionality analysis to abolish the death penalty or greatly restrict its use, this conclusion seems to carry mostly negative news. Federal death-penalty law and practice suggest the need for some minor protections on the margins of existing proportionality doctrine. At the same time, the relatively broad application of federal death-penalty law could weigh against sweeping proportionality restrictions on the death penalty for murder. The article explains why the rarity with which the federal death penalty actually has been carried through to execution
The Mask of Virtue: Theories of Aretaic Legislation in a Public Choice Perspective
No full textThis Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation. As noble as virtuous behavior, virtuous laws, virtuous judging, or virtuous legislation may be, there is no reason to believe that any such theories if employed and adopted as decision rules would be any less susceptible to the debilitating realities of public choice and interest group behavior than other principles or metrics intended to guide lawmaking. We cannot expect interest groups to be virtuous in the ends sought nor lawmaking to be virtuous in the commodities offered and produced. Legislators remain subject to interest group bargaining and will manipulate a virtue-based rule for private gains through masking techniques rather than advance the concept of virtue itself. While some legislation will be drafted to seem virtuous to the public on its outside, its interior will be filled with rent seeking bounties
Book Review of Can Might Make Rights? Building the Rule of Law After Military Interventions
No full text
Informed Consent, Psychotropic Medications, and a Prescribing Physician\u27s Duty to Disclose Safer Alternative Treatments
No full textThe use of psychotropic medication to treat any presumed mental health disorder always involves serious risks of harm. Accordingly, before prescribing psychotropic medication to control the behaviors associated with a presumed mental health disorder, prescribing physicians are required, under various medical ethical guidelines and informed consent laws, to first disclose information regarding available alternative treatment options, and the risks and benefits of such alternative treatment options. Indeed, because psychotropic medications are themselves experimental treatments due to the concededly unknown etiology of most mental health disorders, disclosing safer alternative treatments would seem to be a particularly critical aspect of a prescribing physician’s informed consent obligations in the mental health arena. Unfortunately, numerous studies suggest that prescribing physicians rarely disclose any alternative treatment options to psychotropic medication, even where there is compelling evidence that such alternatives exist. For example, recent randomized controlled studies have indicated that dietary factors may play a more critical and beneficial role in the treatment of various presumed mental health disorders than the use of psychotropic mediation. Yet, such undoubtedly material information is rarely conveyed to the patients or their legal surrogates by the treating physicians prescribing psychotropic medication. While there may be varying individual physician rationales for the nondisclosure of this alternative approach, this article argues that the primary reason appears to be a broken informed consent system. Specifically, informed consent laws in the United States in general provide very little incentive for prescribing physicians to disclose information regarding alternative treatment options that might lie outside of their particular medical community’s recognized forms of treatment, and courts in turn provide very little legal recourse for patients or their legal surrogates deprived of such material information. This lack of legal recourse is even more pronounced for mental health patients deprived of material information regarding alternative treatment options to psychotropic medication, where a mental health patient would presumably also face the near-insurmountable burden of proving that any harm was caused by the medications given without true informed consent, and not by the underlying mental health disorder. This article is the first to propose that negligence-based informed consent laws are simply unsuitable in the mental health context and should be replaced entirely by dignitary-based statutory models that would recognize a legal harm for a physician’s failure to provide mental health patients and their legal surrogates with available and material information relating to safer alternative treatments to psychotropic medication. Unless informed consent laws governing mental health care are rewritten and enforced to protect patients, and not physicians, mental health patients will likely continue to be deprived of meaningful participation in their own mental health care
