Showing papers in "Fordham Urban Law Journal in 1997"

Attorneys and Social Workers Collaborating in HIV Care: Breaking New Ground

Abstract: This article identifies and analyzes the complex ethical and service questions that arise when attorneys and social workers collaborate on behalf of their clients. These issues include: client confidentiality; attorney-client privilege and client waiver of the privilege; identification of the primary client and multi-party representation; legal requirements versus ethical obligations appropriate division of professional responsibilities; case reviews and consultations; and models for combing law and social work practices This article is intended to increase the understanding of and respect for the contributions of both disciplines, promote dialogue among professionals, and enhance service collaborations where appropriate. RELIGION AND POLITICS: A REPLY TO JUSTICE ANTONIN SCALIA*

Female genital mutilation: what does the new federal law really mean?

Abstract: This Comment considers the growing number of immigrants who bring the traditional practice of female genital mutilation to the United States and examines the difficulty in protecting victims from the practice of female genital mutilation in insular communities. Part I outlines the three types of female genital mutilation, the cultural and religious reasons for the ritual, and the existence of the practice in the United States. Part II examines the provisions of the Immigrant Responsibility Act of 1996. Part III recognizes that the passage that the passage of the Immigrant Responsibility Act of 1996 is timely, but argues that its implementation remains uncertain because victims and perpetrators are insulated within their communities. This Comment concludes that the legislation must provide specific provisions and funding to enable states and localities to (1) devote significant amounts to attention to educating communities about the dangers and horrors of the practice, (2) develop culturally sensitive outreach activities for victims of the ritual, and (3) involve governmental agencies and community-based organizations in the fight to abolish female

Working Welfare Recipients: A Comparison of the Family Support Act and the Personal Responsibility and Work Opportunity Reconciliation Act

Abstract: This Note compares the work requirements of the Family Support Act (”FSA”) with those promulgated by the Personal Responsibility and Work Opportunity Reconciliation Act (”PRWORA”) This Note concludes that the fairest and most effective welfare program offers a combination of work, education, and training, and proposes suggestions for implementing the existing work requirements to ensure long-term self sufficiency for welfare recipients. RELIGION AND POLITICS: A REPLY TO JUSTICE ANTONIN SCALIA*

Informed consent to human subject research: improving the process of obtaining informed consent from mentally ill persons.

Abstract: This Note demonstrates that the federal regulations regarding human subject research must provide more specific guidelines that emphasize the process of obtaining informed consent from persons with mental illnesses. Part I discusses schizophrenia as a case example of mental illness that requires more stringent informed consent standards in human subject research. Part II describes the legal foundations of informed consent to human experimentation and the current federal regulations for human subject research. Part III examines the inadequacy of current federal regulations for mentally ill research subjects and proposes revisions to ensure that mentally ill persons provide adequate informed consent to participate in research. This Note concludes that when the potential subject is a person with schizophrenia, the process of obtaining informed consent should require a conversation between the physician-investigator and the potential subject in the presence of a third party patient advocate.

Physician-Assisted Suicide: An Anthropological Perspective

Abstract: In considering physician-assisted suicide, the real challenge lies in understanding the nature of culture itself. Missing from the debate is a discussion of the social consequences of hidden expectations and obligations with respect to access to health care, allocation of resources, terminal and chronic illness, disability, difference, suffering, and the nature of death itself. Part I explores the hidden dimensions of culture that operate at the level of the unconscious. In order to examine the ways in which our cultural expectations are likely to change with the legalization of physicianassisted suicide and active euthanasia it is imperative that we consider some of our current hidden social expectations, and the ways in which the more vulnerable segments of our society may be affected by new expectations. Part II explores euthanasia from the perspective of the disable. Thus far, clinicians, resource managers, lawyers, journalists and bioethicists have dominated the debate concerning euthanasia policy. Disabled consumers view these individuals as controlling information given to terminally ill patients about future quality of life and prospects for pain and suffering. The debate must include reflections on the ways that euthanasia policy is likely to initiate long-term changes in social relations in our society. PHYSICIAN-ASSISTED SUICIDE: AN ANTHROPOLOGICAL PERSPECTIVE

Telemedicine Today and Tomorrow: Why "Virtual" Privacy Is Not Enough

Abstract: This Note demonstrates the need for federal telemedicine legislation that provides uniform confidentiality protection for all telemedicine patients. Part I details the use of telemedicine and outlines the link between telemedicine and privacy issues. Part II discusses current federal and state privacy law, emphasizing the laws that protect medical information. Part III argues that federal telemedicine legislation is necessary to safeguard the confidentiality of patients’ medical records and proposes a uniform law that protects the privacy of telemedicine patients in every state. This Note concludes that without federal legislation, telemedicine will wither, along with isolated patients’ hopes of one day receiving quality and affordable medical care.

The Public Hospital

Abstract: The author traces the development of public and private hospitals In particular, the Article looks at the changing role of the hospital and the development of federal legislation Next, the author reviews the functions of the public hospital, which include providing care for the poor, prisoners, psychiatric patients, trauma patients, and addicts A public hospital also has the role of providing emergency and trauma care, while serving a role in disaster management and as the training grounds for the next generation of medical professionals The closure of public hospitals has become frequent and it does not appear that the current private hospital system is willing or able to care for those patients served in public hospitals Unless the government plans rationally for the nation’s healthcare future, it is nearly certain that some patients’ health will not be economically feasible

Physician-assisted suicide: a common law roadmap for state courts.

Abstract: Part I examines the development of the law legalizing passively hastening death and how this development relied significantly on distinguishing passively hastening death from actively hastening death. Part II subjects the arguments used to legitimate passively hastening death to a traditional criminal law analysis and demonstrates their weaknesses which were simple to conceal when there was little enthusiasm for, and discussion of, the legalization of actively hastening death. The central role of consent in legitimating passively hastening death is analyzed in Part III. Although passively hastening death technically satisfies all of the elements of the crimes of assisted suicide and homicide, it is not illegal because it is legitimated by consent – consent of a competent patient or consent of the surrogate of an incompetent patient. Consent is the mechanism for implementing the fundamental principle. This analysis is applied to actively hastening death in Part IV. Because there is no legally significant distinction between actively and passively hastening death, consent legitimates actively hastening death just as it does passively hastening death. Nonetheless, Part V explores other reasons why actively hastening death ought to be prohibited and concludes that any arguments of any substance that can be made against actively hastening death can be equally applied to passively hastening death and should, therefore, be rejected in the latter as they are in the former. Safeguards must be established to prevent abuse of actively hastening death just as they have for passively hastening death. PHYSICIAN-ASSISTED SUICIDE: A COMMON LAW ROADMAP FOR STATE COURTS

Mental illness, physical illness, and the legalization of physician-assisted suicide.

Abstract: This Article explores the oftentimes mistaken notion that we can realistically identify severely ill individuals seeking physician-suicide who do so willingly, knowingly, and voluntarily. Medical science and medical practice support this proposition. To date, there exists no sound clinical basis for distinguishing suicidal patients with terminal conditions from suicidal patients without terminal conditions. Thus, it is a mistake to posit a reasonably identifiable patient population od adults with terminal diagnosis who can provide informed, voluntary consent to prescription lethal drugs. In practice, the medical community has failed to indentify and treat suicidal disorders. This Article concludes that suicide, including suicide by the physically ill, presents an urgent, unmet public health need in the United States. The Glucksberg and Vacco decisions presume the existence of a reasonably identifiable competent suicidal patient who is terminally ill, without engaging, the sizable empirical literature to the contrary. MENTAL ILLNESS, PHYSICAL ILLNESS, AND THE LEGALIZATION OF PHYSICIANASSISTED SUICIDE

Bioethical consideration of maternal-fetal issues.

Abstract: The relationship between a pregnant woman and her fetus is unlike any other in law, medicine, or ethics. This Article examines the complexity of the maternal-fetal conflict, focusing on the interests of the woman and the sometimes conflicting interests of her fetus. Part I discusses the typical analytical background of the conflict, explaining the various ethical principles, rights, and obligations involved such as autonomy, beneficence and nonmaleficence, and justice. Part II explores the various choices made by the pregnant woman, as well as the state’s attempts to regulate those choices on behalf of the fetus. This Article concludes that, while the maternal-fetal relationship may give rise to certain moral rights in the fetus and obligations in the woman, these are not the same as legal rights and responsibilities on the basis of which the state can or should intervene. BIOETHICAL CONSIDERATION OF MATERNAL-FETAL ISSUES

Physician-Assisted Suicide: Rights and Risks to Vulnerable Communities

Abstract: In this Introduction, the author discusses the recent Supreme Court decisions Washington v. Glucksberg and Vacco v. Quill. On one hand, several panel contributors hold the position that one should have the right to control one’s own death, which is rooted in autonomy, liberty, and equality. Scholarly voices on the other side of the debate, including four panel members, believe that the legalization of physician-assisted suicide would create intolerable risks, particularly to those in the community who are the most vulnerable: the poor, the elderly, and the mentally and physically disabled.

Dual sovereignty and the double jeopardy clause: if at first you don't convict, try, try, again

Abstract: This Note argues that the application of the dual sovereignty doctrine to cases involving successive state and federal prosecutions, where the initial prosecution resulted in an acquittal, violates the Double Jeopardy Clause of the Fifth Amendment. Part I discusses the rationale for the prohibition against double jeopardy and the principle of dual sovereignty. Part II outlines the Supreme Court jurisprudence regarding successive prosecutions brought by independent sovereigns. Part III reviews the arguments against applying the dual sovereignty doctrine in the context of successive prosecutions where the initial prosecution resulted in an acquittal and proposes that the Supreme Court reconsider the doctrine and confine its application strictly to cases involving persons acting under the color of state authority. This Note concludes that the present application of the principle of dual sovereignty violates the Constitution and derogates the integrity of the American criminal justice system.

Some Preliminary Thoughts on the Deregulation of Insurance to Advantage the Working Poor

Abstract: The regulatory framework in which employee benefits products are marketed and consumed by individuals and groups seeking to reduce exposure to covered events which influences the way insurance products are developed. The paper examines the important role that various forms on insurance play in the total compensation of low wage employees, focusing in particular on disability and health insurance. In particular, the author seeks ways in which the applicable regulatory framework might be altered to improve access and coverage. The important aspect of state regulatory law is the growing tendency to impose mandates on insurers who wish to do business within their borders. Although there are sensitive issues surrounding the use of permitting the unfettered practice of risk classification, there are possible benefits with this practice because the insurer simply seeks to incorporate certain facts into its calculations in order to offer the fairest possible premium price. Thus, moving away from a regime dominated by mandates would free employers and insurers to fashion contractual arrangements that suit their particular needs. SOME PRELIMINARY THOUGHTS ON THE DEREGULATION OF INSURANCE TO ADVANTAGE THE WORKING POOR Maria O'Brien Hylton*

Mandatory testing of pregnant women and newborns: HIV, drug use, and welfare policy.

Abstract: An emerging strand of thought portrays pregnant women with drug addiction and HIV infection as having a willful hostility towards their fetus. As a result, pregnant mothers with HIV or addictions are confronted with decreased funding for services and increased sanctions for positive toxicology tests. The rhetoric of blame towards “deviant” mothers has escalated to embrace poor mothers in general. However, in order to support the babies, their mothers must be supported as well. MANDATORY TESTING OF PREGNANT WOMEN AND NEWBORNS: HIV, DRUG USE, AND WELFARE POLICY Wendy Chavkin* Deborah Elman** Paul H. Wise*** Fallout from the abortion debate includes changes in the public conversation about pregnant women. An emerging strand of thought depicts them as so self centered that their selfish indifference, even hostility to the fetus, must be constrained by outside intervention. Thus, in the 1980s, debate focused on the legality of imposing medical interventions, such as blood transfusions or cesarean sections, on competent, dissenting pregnant women.' Towards the latter part of the decade, the focus shifted away from these cases and concentrated on women with stigmatized conditions, such as drug addiction and HIV infection. Such deviant status was construed to be willful hostility towards the fetus. The majority of imposed interventions involved identification through testing, and reporting the women to state authorities. Child protective and criminal justice sanctions sometimes followed such identification.2

Disease Prevention as Drug Policy: A Historical Perspective on the Case for Legal Access to Sterile Syringes as a Means of Reducing Drug-Related Harm

Abstract: This article integrates the historical medical literature and the current research, so that we can see the full extent of the harm caused by limiting availability of sterile syringes and the importance of policies providing access to sterile syringes as a part of our efforts to fight the epidemics of today and tomorrow. This article concludes that a thorough understanding of the damage created by sterile syringe restrictions is crucial to the development of effective disease prevention policies. RELIGION AND POLITICS: A REPLY TO JUSTICE ANTONIN SCALIA*

Does Law Teaching Have Meaning? Teaching Effectiveness, Gauging Alumni Competence, and the MacCrate Report

Abstract: This Article examines law school teaching evaluation techniques and probes the use of a law school alumni survey to measure teaching effectiveness. The Article focuses on a survey of St. Thomas University School of Law graduates. The Article also examines teaching effectiveness in the context of the MacCrate Report and the so called gaps between legal education and law practice it identified. The Article argues that the MacCrate Report was incomplete in its coverage of teaching effectiveness, and that much of the discord it created can be overcome by focusing on teaching effectiveness.

Changing Positions and Entrenched Polemics: A Brief History of the Association to Benefit Children's Views on Pediatric HIV Testing, Counseling and Care

Abstract: Assemblywoman Mayersohn first explains the reasons behind her support for the so-called “Baby AIDS” bill; namely, that over one thousand babies in New York State tested positive for AIDS or HIV antibodies every year but medical professions were not allowed to reveal the results to anyone, including the mother. After the introduction of the bill, the author details how she received criticism and opposition from activist organizations that she had previously supported. In conclusion, the “Baby AIDS” bill is a success because it no longer treated infected infants as some sort of statistical tool and ensures the infants receive the care they need. THE "BABY AIDS" BILL Assemblywoman Nettie Mayersohn* To begin with, I want to express my thanks to the Fordham University School of Law for giving me the opportunity to share with you the background of the "Baby AIDS" Bill,' a very controversial piece of legislation I introduced in 1993. The legislation adds a new section, § 25004, to the Public Health Law requiring the New York State Commissioner of Health to establish a comprehensive program for the testing of newborns for the Human Immunodeficiency Virus (HIV) or the presence of HIV antibodies. 2 In addition, the Health Commissioner will be required to promulgate regulations governing testing implementations, counseling, tracking, disclosure of results pursuant to § 2783 of the Public Health Law, follow-up reviews and educational activities. The testing of newborns envisioned under this bill is specifically exempted from the informed consent requirements of Public Health Law § 2781, which requires pre-test counseling and written consent.4 These two requirements are obviously inappropriate for newborns. Under this bill, the Health Commissioner will be free to conduct the required HIV testing in the same manner as, and in conjunction with, the mandatory testing already done on newborns for seven other diseases pursuant to Public Health Law § 2500-a. Those diseases include PKU, sickle cell trait, syphilis, and hepatitis.6 The story begins with a meeting that I had with the State Medical Society. A representative from the State Medical Society told me that he had an issue that would make everything else I was doing pale in significance. He then proceeded to tell me about AIDS babies. Every child born in the state of New York is tested * In 1977, Ms. Mayersohn was the New York State Delegate to the International Women's Conference and the recipient of the National Conference of Christians and Jews "Builders of Brotherhood" Award. In 1989, Assemblywoman Mayersohn was awarded "Legislator of the Year" by the New York State Chapter of the National Organization for Women. Immediately prior to her election to the Assembly, Ms. Mayersohn was the Executive Secretary to the New York State Crime Victims Board. 1. Assembly Bill 6747 (1993 Legislation) (on file with author). 2. N.Y. PUB. HEALTH LAw § 2500-f (McKinney Supp. 1997). 3. See id. 4. N.Y. PUB. HEALTH LAW § 2781 (McKinney 1993). 5. N.Y. PUB. HEALTH LAW § 2500-a (McKinney 1993).

Br(e)king the Exploitation of Labor?: Tensions Regarding the Welfare Workforce

Abstract: This Article examines the deep human rights concerns within the transmogrifying world of work, focusing on the integral part that work plays in the definition, construction, maintenance, and enhancement of the social contract in the context of the New York City welfare workforce. Part I reviews the “employee”/partner/independent contractor distinctions, focusing on recent case law, the regulatory tax regime, and related issues. Part II examines the complex pressures that workfare legislation will exert throughout most sectors of the workforce and the unemployed. Part III explores the role of Catholic social teachings on workers’ rights as well as the reemergence of the ”living wage” initiative. This Article concludes that the situation is grim, perhaps inexorably Malthusian. As huge pools of surplus labor bid unsuccessfully for increasingly scarce jobs, all but the most educated and technologically adept face unrelenting downward pressures on wage

Community-based health care: a legal and policy analysis

Abstract: While Washington has been unable to lead the way in significant health care reform, the health care system has begun to transform itself in terms of curbing skyrocketing health care costs, dealing with the more than forty million Americans who lack health care coverage, and the problems plaguing the Medicare and Medicaid systems. The search has begun for a health care model that ensures quality care to a wide population in a cost-efficient manner. This article explores how the U.S. Health care system currently functions, examines several innovative models, and suggests ways in which a decentralized, community-based approach to health care reform can address our nation’s health care crisis. Specifically, Part I examines the current system of health care financing. Part II discusses current efforts to provide community based care. Part III offers suggestions for a community-based approach to health care reform, including ways to stimulate provider volunteerism, financing mechanisms, and methods to overcome potential legal barriers to local reform efforts.

Constitutional Tragedy in Dying: Responses to Some Common Arguments Against the Constitutional Right to Die

Abstract: The author first explains that he will argue for the constitutional right to die, including the right of terminally ill persons to physician-assisted suicide. It would be a constitutional tragedy otherwise because it would entail that the Constitutional sanctions a horrible form of tyranny and that the Constitution allows citizens to author their own tragic endings. In the final part of the essay, the author responds to some common arguments against the constitutional right to physician-assisted suicide. While there may be some merits to the opposition arguments, none provides a good constitutional argument against recognizing a right to die. In addition, procedural safeguards can be employed to address any other substantive problem. CONSTITUTIONAL TRAGEDY IN DYING: RESPONSES TO SOME COMMON ARGUMENTS AGAINST THE CONSTITUTIONAL RIGHT TO DIE

Peer harassment under title ix of the education amendments of 1972: where's the intent

Abstract: This Note argues that in peer harassment cases, school districts should face liability under a “known or should have known” standard where the school’s intent to discriminate may be determined by the circumstances of the case. Part I provides a brief historical overview of Title IX and the traditional forms of hostile environment harassment that it has been used to combat, demonstrating that courts use the statute to punish harassment where the school has reason to know of the harassment and fails to take appropriate action. Part II explores a subset of hostile environment cases where U.S. circuit courts are divided – peer sexual harassment cases, and analyzes the rationale supporting each position. Part III provides guidelines for when courts should extend Title IX protection to peer sexual harassment claims and articulates standards for school liability.