Monthly Archives: June 2014

Do No Harm: Misdiagnosing Informed Consent

Erin L. Sheley, Rethinking Injury: The Case of Informed Consent, BYU L. Rev (forthcoming), available at SSRN.

For quite some time, the large majority of informed consent cases have been handled under a negligence rubric, the central issue being whether the physician’s disclosure of risks to the patient was reasonable, as measured either by the reasonable patient standard, or in some jurisdictions, the standard of the profession. The battery cause of action has now been relegated to a minor role. It only surfaces in cases in which the physician does not simply fail to give adequate information about the costs and benefits of an agreed-upon procedure, but has completely failed to secure the patient’s consent, for example, by operating on another body part or performing a tubal ligation following a C-section. The battery claim is so marginalized that the A.L.I., in the Restatement (Third) of Intentional Torts to Persons, is currently debating whether to limit the scope of battery/informed consent claims even further, perhaps requiring the patient to prove that her doctor knowingly exceeded her consent before allowing recovery for battery.

Going against the grain, Erin Sheley’s new article argues that the negligence framing of informed consent claims loses sight of the dignitary aspects of the claim that the battery cause of action captured so well. This overreliance on the negligence framing of consent claims creates “a class of factually injured patients who have no remedy under current law.” Sheley starts with an example of a breast cancer patient who was under the impression that she was to receive a biopsy on a lump in her breast. However, when the physician determined that her tumor was malignant, he decided to go ahead and perform a mastectomy in an effort to stop the cancer from spreading. Putting aside whether such a patient might possibly recover for battery under the current restrictions, Sheley argues that the patient in such a case has suffered a real injury, even if it turns out the physician made the right call from a medical point of view. The problem with proceeding under the negligence theory is that the plaintiff’s claim will likely fail because she cannot prove that she suffered a physical injury, a necessary element of a negligence claim predicated on lack of informed consent. Continue reading "Do No Harm: Misdiagnosing Informed Consent"

A Lawyer with a Candlestick in the Conservatory: The Perpetuities Whodunnit

Grayson M.P. McCouch, Who Killed the Rule Against Perpetuities?, 40 Pepp. L. Rev. 1291 (2013).

Ding, dong, the Rule Against Perpetuities is dead. Well, in about half of all states. No longer must property interests vest within “lives in being plus twenty-one years.”  Wealthy individuals can put their money in trust forever. Even better, when that trust is created in a state without an income tax, and the trust assets never become included in the estate of a beneficiary, assets transferred to a perpetual trust remain … perpetually tax-free. What is the explanation behind the rush among states to repeal the RAP, beginning in the mid-1990’s? Professors Robert Sitkoff and Max Schanzenbach, among others, have pointed to the generation-skipping transfer tax as the engine driving repeal. Other theories include settlors’ desires for post-mortem control or creditor protection for beneficiaries. Enter into the conversation Grayson M.P. McCouch with his concise and well-written article, Who Killed the Rule Against Perpetuities? McCouch argues that the repeal of RAP is as much the work of bankers and lawyers as it is of any tax law.

McCouch begins his essay by looking at the use of perpetual trusts before and after the enactment of the generation-skipping transfer tax (and its $1 million exemption) in 1986. Prior to 1986, it was possible to create a perpetual trust in Delaware, Wisconsin and Idaho, albeit via different mechanisms or legal exceptions. Yet those states did not have a lion’s share of the trust business, which McCouch attributes to settlors’ ability to achieve objectives within the perpetuities period of their chosen local jurisdiction and a sense that the tax benefits of creating a trust in Delaware, Wisconsin or Idaho were “incremental” at best. After 1986, the generation-skipping transfer tax inspired a search for ways to avoid technical problems that could arise even in the existing perpetual jurisdictions. (McCouch explains the “Delaware tax trap” problem with such clarity and elegance that the article is worth reading for that single paragraph alone.) Continue reading "A Lawyer with a Candlestick in the Conservatory: The Perpetuities Whodunnit"

Law in the Conquest of L.A.

Law and conquest are deeply intertwined phenomena. We typically think of conquest as the physically violent and genocidal subjugation of people. But as a process, conquest involves the subjugation of both people and space and the reorganization of people within space. Conquest can only be consolidated, as Chief Justice John Marshall explained in Johnson v. M’Intosh (1823), when it generates new sovereignal claims and legal rights. Law, however, is not merely a consequence of conquest, it is also a constitutive element of it. The re-organization of space depends upon and generates ideas about how people relate to one another within that space, as well as ideas about how space can be owned and used, by whom, and to what purposes.

In Before L.A., David Torres-Rouff explores how Spanish, Mexican, and American migrants conquered Los Angeles by tracing “an interdependent, mutually constitutive relationship between race and space.” (P. 13.) Drawing on critical geography, which draws links between the built environment and social relationships, Torres-Rouff explains how, “In much the same way that race making leads to the formation of new individual and collective identities, place making leads to the transformation of previously neutral spaces into places with particular meanings that contain their own individual and differentiated identities.” (P. 11.) More specifically, he uses this interdependent relationship between race and space to demonstrate how local contests for power over land, labor, and water were integral to the construction of race in early Los Angeles. Continue reading "Law in the Conquest of L.A."

The Substantive Criteria Underlying Birthright Citizenship

D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013).

The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.

Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.) Continue reading "The Substantive Criteria Underlying Birthright Citizenship"

Treating Natural Law as Law

Jeremy Waldron, What is Natural Law Like?, N.Y.U. Working Paper Series (2012), available at SSRN.

Seldom do I come across a jurisprudence article that uses a simple shift in framing to place an old topic in a completely new light. “What is Natural Law Like?” by Jeremy Waldron prompted questions about natural law that had not occurred to me in two decades of following the subject. The standard ways of discussing the topic cover the natural law tradition, starting with Aquinas and moving to the present; take up what qualifies a theory as “natural law,” usually a claim of objective principles; elaborate on the debate between natural law and legal positivism; and lay out the positions of various “natural law” theorists, including John Finnis, Ronald Dworkin, and others.1 Much of this territory is familiar and well-worn.

Waldron starts with a standard question, “what is a law of nature?”, but immediately adds a twist by positing, “we should expect natural law to be law-like. It should be like law.”2  This seems innocuous as he states it, but it quickly produces unusual implications. Continue reading "Treating Natural Law as Law"

The Forgotten Promise of Professionalism

Sida Liu, Lily Liang, & Terence C. Halliday, The Trial of Li Zhuang: Chinese Lawyers’ Collective Action Against Populism, 1 Asian J.L. & Soc’y (forthcoming 2014), available at SSRN.

Perhaps all the lawyer jokes are not such bad a thing.1 Rather than trying to make lawyers more appealing, we ought to protect the profession from the sometimes-inevitable popular resentment. By telling the shocking story of defense attorney Li Zhuang’s prosecution in China, Sida Liu, Lily Liang, and Terence Halliday remind us of the power of professionalism and the need, at times, to resist both government pressure and public anger at lawyers.

In America, we are living through a time of radical change in the profession and in professional education. The market seems, in many ways, to be winning out. The concept of professionalism is assuming a sort of hazy anachronistic aura. Some scholars even declare the notion defunct and celebrate its demise.2 While the profession has always experienced itself in a state of crisis, the suggestion that we abandon the notion of an independent legal profession is relatively new.3 Perhaps it is changes within the profession, such as its growing size and competitiveness, which have led to the decline in professionalism. Broader cultural trends toward consumerism and away from collective approaches to social problems must also contribute to this shift. If we accept the general momentum, the question remains whether to embrace or resist it. Continue reading "The Forgotten Promise of Professionalism"

LGBTA: Asexuality Becomes a Movement

Elizabeth F. Emens, Compulsory Sexuality, 66 Stan. L. Rev. 303 (2014)

Fourteen years ago, Kenji Yoshino observed that the terms “heterosexual” and “homosexual” were commonly used “as mutually exclusive, cumulatively exhaustive categories”—a usage that casually implied that “bisexuals” and “asexuals” did not exist. In this well-known article in the Stanford Law Review,1 Yoshino methodically examined the ways that straights and gays have conspired to “erase” bisexuals. But while he acknowledged that “asexuals are, if anything, more likely than bisexuals to be erased in sexuality discourse,” he regretfully decided “not to attempt a systematic discussion of asexuals in this article.” In light of the “undertheorized divergences between bisexuality and asexuality,” he concluded “that the two topics deserve separate analysis.”

Under the circumstances, it is especially fitting that the Stanford Law Review has published the first law review article on asexuality. In Compulsory Sexuality, Emens demonstrates the payoff of giving asexuality its analytical due. After briefly describing asexuality’s emergence in several discourses, she turns her eye toward the questions of theory and law posed by the rise of this new identity movement. Continue reading "LGBTA: Asexuality Becomes a Movement"