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Keeping Corporations in the Courts: A Framework for Addressing Jurisdiction over Corporate Defendants in Class Action Litigation
Get PDFIn a series of recent cases, the Supreme Court has made it significantly more difficult for plaintiffs to seek legal redress against corporations by limiting the power of courts to exercise personal jurisdiction over corporate defendants. Beginning in 2011, the Supreme Court limited the inquiry around where a corporation might be subject to general, all-purpose jurisdiction for claims against it. Then, in 2017, in Bristol-Myers Squibb v. Superior Court of California (“BMS”), the Court constrained the ability of plaintiffs to join together to sue a corporation when those plaintiffs were harmed by the corporation in different states. Importantly, these decisions left open whether these jurisdictional constraints apply to class actions.
This Note argues that because of the important role that class actions play in corporate accountability, it is essential that these limitations not be extended to the class action form. In summary, if the Rule 23 class action certification criteria are met and if the court has jurisdiction over the defendant with respect to class representatives’ claims under current personal jurisdiction doctrine, then the court should impute jurisdiction over that defendant with respect to the claims of class members. Part II of the Note details the scope of the aforementioned string of cases and discusses the scholarly, judicial, and popular responses to the potential applicability of BMS to class actions. Part III identifies the problems with applying BMS to class actions, focusing on the importance of private enforcement in maintaining corporate accountability and the essential role that the class action form plays in that process. Finally, Part IV considers the legal, policy, and normative considerations associated with limiting the scope of BMS and proposes solutions for how to limit BMS in the class action context
Will I Be Happy, Will I Be Rich? Three Lot Books (Qurʿas) from the Library of Qāniṣawh al-Muḥammadī
No full textThis article deals with a collection of three divinatory lot books (qurʿas) that were once owned by Qāniṣawh al-Muḥammadī, an early tenth/sixteenth-century governor of Mamluk Damascus: Qurʿat al-Imām Jaʿfar, Qurʿat al-Dawāzdahmarj, and al-Qurʿa al-mubāraka al-maʾmūniyya. Beginning with a transcription and translation of their introductions and some samples of their main texts, I analyze the books’ divinatory technique and show it to be a combination of choice and chance, the latter generated either through a muqāraʿa or through a khaṭṭ procedure. I lay bare the mechanics that inform the seemingly haphazard arrangement of the 3,856 divinations included in the books, identify the books’ sources in Quranic or (Perso-)Indic astrology, and conclude with a discussion of the historicity of the various user strategies, based on supplementary manuscript evidence. In the appendix, I provide a full transcription and translation of the first lot book, with instructions for making one’s own divinatory device
Military Foundations, Ribāts, and Urbanization: The Roman, Early Islamic, and Spanish Empire in Comparison
No full textExamining the Impact of Living in an Asylum on the Mental Health of Middle Eastern Refugees
No full textRefugee aid is seldom a topic of American political conversations despite rising global refugee populations (American Immigration Council, 2020). Refugees who have fled or been forced out of their native country seek asylum, or protection from persecution, in a host country (U.S. Citizenship and Immigration Services, 2015). Thus, an asylum country is one in which refugees can live without fear of persecution or deportation to their native country, while they apply for permanent residence or resettlement (U.S. Citizenship and Immigration Services, 2015). Many Middle Eastern nations including Syria, Libya, Yemen, and Palestine are currently experiencing war and subsequently, hundreds of thousands of individuals from these nations have been forced to seek asylum elsewhere (International Institute for Strategic Studies, 2022). Adjusting to asylum countries may affect mental health, which is an individual’s state of psychological wellness (Centers for Disease Control and Prevention, 2023; United Nations High Commissioner for Refugees, 2022). Thus, this paper will examine how relocation to an asylum country impacts the mental health of Middle Eastern refugees
Resilience and Psychological Distress in Genetic Testing for Alzheimer's Disease
Get PDFThe relationship between resilience and psychological distress resulting from genetic testing for Alzheimer’s disease among non-cognitively impaired individuals is examined in this study. Preventative genetic testing determines the likelihood of developing or passing on genetic disorders. However, receiving genetic information, especially regarding incurable diseases like Alzheimer’s disease, can lead to significant psychological distress. Resilience, the ability to cope with adversity and recover quickly, is considered a protective factor against psychological distress. The purpose of this study is to investigate whether higher levels of resilience are associated with lower psychological distress from genetic testing for Alzheimer’s disease and to determine if having a familial history of Alzheimer’s disease influences this relationship. An online cross-sectional survey was conducted among 181 non-cognitively impaired participants (43.6% Male; 54.1% Female; Mage=38.1 [13.9]) using the Impact of Genetic Testing for Alzheimer’s Disease (IGT-AD) scale and the Brief Resilience Scale (BRS), along with a question about family history of Alzheimer’s disease. The results indicated a significant negative correlation between resilience and psychological distress, suggesting that individuals with higher resilience experienced lower distress related to genetic testing. However, family history did not mediate the relationship, meaning the protective effect of resilience was consistent regardless of familial risk. These findings have implications for developing targeted support services and resilience-based interventions to help individuals cope with the emotional impact of genetic testing for Alzheimer’s disease. Further research could explore other potential protective factors and examine the long-term impact of genetic testing results on psychological well-being and behavior
Effects of Absorption Training on Positive Activity Experiences for Individuals with Anhedonia: A Single Case Series
Get PDFExisting literature has suggested an association between being absorbed in activities and improved experience in activities in terms of better mood gain and reducing rumination. This single-case series aimed to collect methodological information and preliminary data for future trials regarding the effects of absorption training; a rumination-focused CBT component, on improving positive activity experiences among individuals with anhedonia using a multiple baseline design (N=16). There were no significant effects of absorption training found regarding the level of absorption, positive affect, and rumination during the positive activities which might be due to high baselines, limiting the effects of intervention. The effect sizes indicated that absorption training might have larger effects on improving absorption and reducing rumination than increasing positive affect during activities. In terms of suggestions for methodology, future clinical trials should target participants with higher levels of anhedonia using a larger and homogenous sample and provide higher-intensity training. It is also worth exploring whether absorption training has larger effects on specific types of populations such as clinically depressed individuals
Fostering Medical Students’ Commitment to Beneficence in Ethics Education
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ABSTRACT
When physicians use their clinical knowledge and skills to advance the well-being of their patients, there may be apparent conflict between patient autonomy and physician beneficence. We are skeptical that today’s medical ethics education adequately fosters future physicians’ commitment to beneficence, which is both rationally defensible and fundamentally consistent with patient autonomy. We use an ethical dilemma that was presented to a group of third-year medical students to examine how ethics education might be causing them to give undue deference to autonomy, thereby undermining their commitment to beneficence.
INTRODUCTION
The right of patients to choose which treatments they prefer is rooted in today’s social mores and taught as a principle of medical ethics as respect for autonomy. Yet, when physicians use their clinical knowledge and skills to advance the well-being of their patients, there may be a conflict between patient autonomy and physician beneficence. We are skeptical that today’s medical ethics education adequately fosters a commitment to beneficence, which is both rationally defensible and fundamentally consistent with patient autonomy.
I. An Ethical Dilemma
The impetus for this paper arose when students who were completing their third clinical year discussed a real-life ethical dilemma. A middle-aged man developed a pulmonary hemorrhage while on blood thinners for a recently placed coronary stent. The bleeding was felt to be reversible, but the patient needed immediate intubation or he would die. The cardiologist was told that the patient previously expressed to other physicians that he never wanted to be intubated. However, the cardiologist made the decision to intubate the patient anyway, and the patient eventually recovered.[1]
Students were asked if they believed that the cardiologist had acted ethically. Their overwhelming response was, “No, the patient should have been allowed to die.” We looked into how students applied ethical reasoning to conclude that this outcome was ethically preferred. To explore how the third-year clinical experience might have formed the students’ judgment, we presented the same case to students who were just beginning their third year. Their responses were essentially uniform in recommending intubation.
While there is likely more than one reasonable view in this case, we agree with the physician and the younger medical students that intubation was the ethically appropriate decision and will present an argument for it. But first, we explain the reasoning behind the more advanced medical students’ decision to choose patient autonomy at the expense of beneficence.
II. Medical Ethics Education and the Priority of Autonomy
Beauchamp and Childress’s Principles of Biomedical Ethics, first published in 1979 and now in its 8th edition, is a significant part of the formal ethics education in medical school.[2] Students learn an ethical decision-making approach based on respect for four ethical principles: autonomy, beneficence, nonmaleficence, and justice. While Beauchamp and Childress officially afford no prima facie superiority to any principle, the importance of respect for patient autonomy has increased through the editions of their book. For example, early editions of their book opposed the legalization of physician-assisted death compared to recent editions that defended it.[3] As another example, Beauchamp and Childress make paternalism harder to justify by adding an autonomy-protecting condition to the list of conditions for acceptable paternalism.[4] Authority, they contend, need not conflict with autonomy—provided the authority is autonomously chosen.[5] “The main requirement,” they write, “is to respect a particular patient’s or subject’s autonomous choices, whatever they may be.[6] In the principlism of Beauchamp and Childress, autonomy now seems to have a kind of default priority.[7] However, the bioethics discourse has strong counternarratives, noting some movement to elevate the role of beneficence and to respect the input of stakeholders, including the family and the healthcare team.
Ethics education achieves particular relevance in the third clinical year when students become embedded in the care of patients and learn from what has been called the informal curriculum. They observe how attending physicians approach day-to-day ethical problems at the patient’s bedside. In this context, students observe the importance of informed consent for serious treatments or invasive procedures, a practice that highlights the principle of patient autonomy.
In both the formal and informal curriculum, medical students observe how, in the words of Paul Wolpe, “patient autonomy has become the central and most powerful principle in ethical decision-making in American medicine.”[8] In short, students appear to learn a deference for patient autonomy. This curricular shift in favor of autonomy coincides with legal developments that protect patients’ rights and decision-making with respect to their healthcare choices. The priority of autonomy in medicine benefits patients by reflecting their choices and, in some cases, their fundamental liberty.
III. The Practice of Medicine and the Commitment to Beneficence
There are many critiques of the dominant place that autonomy has in biomedical ethics,[9] especially considering that autonomy seems to be biased toward individualistic, Western, and somewhat American culture-driven values.[10] In addition, many bioethical dilemmas are cast as a conflict between autonomy and beneficence. Our point is that medical students bring to their study of medicine a commitment to beneficence that seems to be suppressed by practical ethics education. We think this commitment is rationally defensible and should be nurtured.
It is striking that young medical students have a pre-reflective commitment to beneficence at all. For, as we mentioned, it is not just medicine but Western culture generally that prioritizes autonomy in settling ethical dilemmas. In wanting to act for the good of others (rather than simply agreeing to what others want), physicians are already swimming somewhat against the cultural tide.[11] However, doing so makes sense, given the nature of medicine and the profession of healing. When prospective medical students are asked why they wish to become physicians, the usual answer is some variation on caring for the sick and preventing disease. It is unlikely that a reason to become a physician is to respect a patient’s autonomy.
It would be easy to dismiss medical students’ commitment to beneficence as a mere intuition and contrary to a more reasoned and deliberative approach. Beauchamp and Childress seem to minimize the value of physician intuition, stating that justifications for certain procedures are “…supported by good reasons. They need not rest merely in intuition or feeling.”[12] Henry Richardson writes that “situational or perceptive intuition…leaves the reasons for decision unarticulated.”[13] We think this is a crude and rather thin way of understanding intuition. Some bioethicists have defended intuition as essential to the practice of medicine and not something opposed to reason.[14]
In the case we describe, we believe the ethical justifications s for the patient’s intubation are fundamentally sound: the patient did not have a “do not intubate” order written in the chart, the emergency intubation had not been foreseen, so the patient did not have the opportunity to consent to or reject intubation; the patient had consented to the treatment for his cardiac disease so his consent for intubation could have been assumed;[15] and the consequences of respecting his autonomy did not justify allowing him to die.[16] While it is possible to have more than one reasonable view on this case, we think the case for beneficence is strong and certainly should not be dismissed out of hand.
We do not deny that if a patient makes a clearly documented, well-informed decision to forgo intubation that this decision ought to be respected by the physician (even if the physician disagrees with the patient’s decision). But, in this situation, as in many others in the practice of medicine, the patient’s real wishes and preferences are not well-articulated in advance. There are many cases where a physician acts based on what she believes the patient, or the surrogate, would want, sometimes in situations that do not allow much time for reflection. An example might be resuscitation of a newborn at the borderline of viability. In their ethics education, beneficence would mean acting first to save a life. If the patient or surrogate makes an informed decision to the contrary, a beneficent physician respects that autonomous decision.
In the case presented, the patient expressed gratitude to the cardiologist when extubated. But what if he had expressed anger at the physician for violating his autonomy? There are those who could argue that not only was intubation ethically wrong but that the cardiologist put himself in legal jeopardy by his actions (especially if there had been a written refusal applicable to the specific situation). In the example we use, we point out that the cardiologist may not have escaped a lawsuit if the patient had died without intubation. His family, when hearing the circumstances, may have sued for failure to act and dereliction of the cardiologist’s duty to save him. Beyond a potential legal challenge for either action or inaction, there is an overriding ethical question the cardiologist had to address: what course would be most satisfying to his conscience? Would he rather allow a patient to die for fear of recrimination, or act to save his life, regardless of the personal consequences? In the absence of real knowledge about the patient’s considered wishes, it is most reasonable to err on the side of promoting patient well-being.
A physician’s commitment to beneficence is not necessarily a way of undermining a patient’s autonomy. In acting for the patient's good, physicians are also acting on what it is reasonable to believe a patient (or most patients, perhaps) would want, which is obviously connected to what a patient does want. Pellegrino and Thomasma argue that beneficence includes respect for a patient’s autonomy since “the best interests of the patient are intimately linked with their preferences.”[17] Instead of conceptualizing ethical dilemmas in medicine as conflicts between autonomy and beneficence, it is possible that medical schools could teach students that truly practicing beneficence is a way of valuing patient autonomy, especially when the patient’s wishes are not specific to the situation and are not clearly expressed.
CONCLUSION
It is important for students and practicing physicians to understand the principle of respect for patient autonomy in a pluralistic society that demands personal self-determination. However, the role of the physician as a beneficent healer should not be diminished by this respect for autonomy. Respecting a patient’s autonomy is grounded in and manifested by physician beneficence.[18] That is, seeking what is good for the patient can only be good if it respects their personhood and dignity.
We propose that a commitment to beneficence, incipient in young medical students, should be developed over time with their other clinical reasoning skills. Such a commitment need not be sacrificed on the altar of patient autonomy. Beneficence needs greater relative moral weight with students as they proceed in their ethics education.
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[1] S. Jauhar, “When Doctors Need to Lie,” New York Times, February 22, 2014, https://www.nytimes.com/2014/02/23/opinion/sunday/when-doctors-need-to-lie.html.
[2] T. L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 8th ed. (New York, NY:
Oxford University Press, 2019).
[3] Louise A. Mitchell, “Major Changes in Principles of Biomedical Ethics,” The National Catholic Bioethics Quarterly 14, no. 3 (2014): 459–75, https://doi.org/10.5840/ncbq20141438.
[4] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 8th ed. (New York, NY: Oxford University Press, 2019), 238.
[5] Beauchamp and Childress, 103.
[6] Beauchamp and Childress, p. 108.
[7] For other accounts that prioritize autonomy, see e.g. Allen E. Buchanan and Dan W. Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge University Press, 1989), 38–39; R Gillon, “Ethics Needs Principles—Four Can Encompass the Rest—and Respect for Autonomy Should Be ‘First among Equals,’” Journal of Medical Ethics 29, no. 5 (October 2003): 307–12, https://doi.org/10.1136/jme.29.5.307. For examples of critiques of these accounts, see footnote 9.
[8] P. R. Wolpe, “The Triumph of Autonomy in American Bioethics: A Sociological View,” in Bioethics and Society: Constructing the Ethical Enterprise, p. 43.
[9] V. A. Entwistle et al., “Supporting Patient Autonomy: The Importance of Clinician-Patient Relationships,” Journal of General Internal Medicine 25, no. 7 (July 2010): 741–45; C. Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law, 1st ed. (Oxford ; Hart Publishing, 2009); O. O’Neill, Autonomy and Trust in Bioethics, The Gifford Lectures, University of Edinburgh 2001 (Cambridge, UK: Cambridge University Press, 2002).
[10] P. Marshall and B. Koenig, “Accounting for Culture in a Globalized Bioethics,” The Journal of Law, Medicine & Ethics: A Journal of the American Society of Law, Medicine & Ethics 32, no. 2 (2004): 252–66; R. Fan, “Self-Determination vs. Family-Determination: Two Incommensurable Principles of Autonomy,” Bioethics 11, no. 3–4 (1997): 309–22.
[11] Arguments stressing the importance of beneficence, as ours does here, certainly approach paternalistic arguments. We set aside the complex issue of paternalism for purposes of this paper and simply note that the principle of beneficence as such does not say anything specifically about acting against the patient’s will. In the case study that focuses this paper, we do not believe the patient’s will or wishes were clearly indicated.
[12] Beauchamp and Childress, Principles of Biomedical Ethics, p. 20, see note 2 above.
[13] H. S. Richardson, “Specifying, Balancing, and Interpreting Bioethical Principles,” The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine 25, no. 3 (January 1, 2000): 285–307, p. 287.
[14] H. D. Braude, Intuition in Medicine a Philosophical Defense of Clinical Reasoning (Chicago ; University of Chicago Press, 2012).
[15] R. Kukla, “Conscientious Autonomy: Displacing Decisions in Health Care,” The Hastings Center Report 35, no. 2 (2005): 34–44.
[16] M. Schermer, The Different Faces of Autonomy: Patient Autonomy in Ethical Theory and Hospital Practice, vol. 13, Library of Ethics and Applied Philosophy (Dordrecht: Springer Netherlands, 2002).
[17] E. D. Pellegrino and D. C. Thomasma, For the Patient’s Good - the Restoration of Beneficence in Health Care (New York, NY: Oxford University Press, 1988), p. 29.
[18] Pellegrino and Thomasma, For the Patient’s Good
Victims Again : Litigation Ends on the US Public Health Service Syphilis Studies in Guatemala
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ABSTRACT
A US Public Health Service study conducted after World War II led to a research scandal involving the intentional infection of 1300 Guatemalans with syphilis and other STIs. That news initially prompted an apology by President Obama to the President of Guatemala and an investigative report from the Presidential Commission for the Study of Bioethical Issues. Despite promises from the US Department of Health and Human Services to invest 1.8 million to “improve the treatment and prevention of HIV and other sexually transmitted diseases … in Guatemala and to further strengthen ethical training on human research protections.”[8] No commitments were made to the victims, and no compensation was delivered to them in Guatemala.
Because the Garcia case ruled out a suit against the US government, in 2015, plaintiffs filed another class action lawsuit against Johns Hopkins University, the Rockefeller Foundation, and pharmaceutical manufacturer Bristol Myers Squibb, demanding 1.8 million to Health Initiatives in Guatemala and to Improving Global Human Research Protections,” Business Wire, January 10, 2012,
[9] Alvarez v. Hopkins, complaint, Case 1:15-cv-00950-JKB Circuit Court Baltimore City (April 1, 2015). Spector-Bagdady K, Lombardo P.A. “’Something of an adventure’: postwar NIH research ethos and the Guatemala STD experiments,” J Law Med Ethics. 2013;41(3):697-710. [DOI: 10.1111/jlme.12080]
[10] Thomas Parran [1892-1968] was Surgeon General of the US Public Health Service and approved the funding proposal that resulted in the experiments. He was also a member of the Rockefeller Foundation’s Board of Trustees and the Board of Scientific Directors of the foundation’s International Heath Division. At times his government service and his work at Rockefeller overlapped the work that occurred in Guatemala. Frederick Soper [1893-1977] was an Associate Director at Rockefeller and in 1947 was assigned to work on the Guatemala experiments at the Pan American Sanitary Bureau (PASB).
[11] Alvarez v. Hopkins, complaint
Transcorporeal Technobodies, Sensory Organisms: Recovering Nature in Trans Poetics
No full textUnder the dominant nature-human binary, trans individuals are rejected from both categories on the grounds of their technologized embodiment. Contemporary trans poetic works, including Jos Charles’ Feeld, reject this dualism through its poetic form and Middle English dialect in order to recover access to both nature and the body. Taking a multidisciplinary approach across trans, ecological, and media theory, with particular attention to the subfields of transecology and somatechnics, this paper argues that technology and nature are compatible, not mutually exclusive. Feeld—which embraces a “natural,” embodying technology—is set in stark contrast with Titane, a recent horror film that manifests the violence inherent in “unnatural” technology. A varied approach of textual analysis and applied theoretical frameworks draws on Stryker, Butler, Haraway, and Kristeva, among others. A trans ethic emerges as an urgent and imperative path to recovering the body alongside the label of naturalness
Through Silence She Speaks: The Rearticulation of the Female Voice in King Lear
No full textThis essay explores the minimal dialogue and voice of Cordelia in relation to feminine resistance and rearticulation through silence and the female body. I will investigate the methods through which Cordelia is silenced and restricted by the central male patriarchal authority figure, her father Lear. Her death will function as a key point of examination, as it is through this silence that Lear is unable to impose his language onto her voice, and is instead situated in her position of voicelessness. This essay aims to demonstrate how Cordelia forms an alternative mode of communication, one that is difficult to interpret for the patriarchal ear and therefore challenging or impossible to control. She becomes valuable, even becoming the lynchpin of the play, in imparting one of the central themes of the text; that human beings should mean and feel what they say rather than rely on false, flattering dialogue