Showing papers in "Fordham Urban Law Journal in 2002"

The physician's conscience, conscience clauses, and religious belief: a Catholic perspective.

Abstract: INTRODUCTION Conscientious persons strive to preserve moral integrity. This requires that their external behavior be congruent with their conscience's internal dictates about what they take to be morally right and feel compelled to do. In our morally diverse world, conscientious persons may come into conflict with each other and with society's moral values. Except for the amoral sociopath, conflicts of conscience are a regular feature of the moral life, Even for extreme relativists, resolving these conflicts is a constant challenge. Any society purporting to serve the good of its members is therefore obliged to protect the exercise of conscience and conscientious objection. However, this involves a serious dilemma for any pluralist, democratic, liberal, or constitutional state. On the one hand, such a society is committed to tolerance of religious diversity, freedom of individual choice, and "neutrality" with respect to religious belief. On the other hand, optimizing freedom of conscience for some individuals may often limit the legal rights, social entitlements, and moral beliefs of others. This dilemma is most acute for health professionals who hold strong religious beliefs, some of which cannot be compromised in good conscience. Can conscience clauses protect Catholic and other religious health professionals' moral claims to freedom of the exercise of their conscience? To what extent can these legal measures secure rights of conscience in the face of a liberal, democratic, and secular society's commitments to moral relativism, personal freedom of choice, and an implicit social contract with its professionals? Is there some point at which religious believers are morally compelled not simply to refrain from participation, but to dissent in the public arena using the processes of a democratic society to change public policy? This Essay engages some of these issues in the specific case of Roman Catholic physicians whose religious beliefs are becoming progressively counter-cultural on the so-called "human life" issues. (1) Roman Catholic physicians serve as paradigm cases for all whose religious beliefs compel them to refuse to participate in certain acts, which are legal and even "required" in their societal roles. (2) Although this Essay focuses on physicians are the focus, the same issues confront nurses, social workers, allied health workers, and all others who serve any function in our health care system. Similarly, although end-of-life issues will be used to illustrate particular conflicts of conscience, similar conflicts arise in other dimensions of modern health care, such as contraception, abortion, various types of assisted reproduction, sterilization, stem cell research, and cloning. This Essay will discuss only the ethical dimensions of the conflicts while others at this conference with the requisite legal expertise will discuss the legal aspects of conscience clauses. Good law should be based on good ethics; in other words, the rights and claims it protects should carry moral weight and justification. Yet, in resolving conflicts of conscience in secular societies the complexity of the legal issues reflects the complexity of the ethical issues. (3) Often they are extremely difficult to dissect. This is significant because once the ethical issues are expressed in law, the debate may be reduced to instrumental and procedural details that cannot resolve underlying moral sources of controversy. For this reason, much more debate is required before conscience and exemption clauses can be applied in ethically defensible ways. The existence of a statutory protection does not assure the exercise of freedom of conscience. This Essay seeks to examine some of the ethical desiderata behind conscience clauses in the case of Roman Catholic physicians' conflicts of conscience. It does so under five headings: first, why conscientious objection is so important in our day; second, the moral grounding for freedom in the exercise of conscience; third, the components of the physician's conscience; fourth, specific conflicts of conscience for Catholics physicians and institutions; and fifth, competing models of conflict resolution. …

Making the Good Easy: The Smart Code Alternative

Abstract: It is legally difficult to build good urban places in the United States. The vast majority of conventional zoning codes prohibit the replication of our best examples of urbanism--places like Nantucket, Williamsburg, or even "Main Street U.S.A." in Disneyland. This situation has been profoundly damaging. Our current codes are based on a theory of urbanism that is decidedly anti-urban. They separate land uses, decrease densities, and increase the amount of land devoted to car travel, prohibiting the kind of urbanism that typifies our most beloved urban places. Ironically, by being anti-urban, conventional codes are also anti-environment. Through separation, districting, and rigid statistical procedure, zoning has forced us to think in terms of separating the human habitat from the natural one when they are really co-dependent. The natural environment is better protected when cities are viable places for humans to live. Conventional zoning, however fails to recognize this reality by prohibiting true urbanism and substituting it with the "anti-city" (1)--a landscape composed of monofunctional, single-use zones. True urbanism is diverse, compact, pedestrian, and celebratory of the public realm. Conventional zoning gives us only a disaggregated version of urbanism, commonly known as sprawl, which does not constitute a viable human habitat. What is needed is a fundamentally different vision of how cities should be coded. This article lays out an example of a completely new genre of urban planning code--the Smart Code. (2) The Smart Code exemplifies how the principles of urbanism and environmentalism can be mutually protected and enhanced. It is strongly aligned with the notion of "smart growth," a planning and environmentalist movement based on the goals of environmental protection and sustainable development. (3) The Smart Code is based on an explicit, normative theory, known as the Transect, that links human and natural environments in one conceptually continuous system. (4) The Transect concept promotes an urban pattern that is sustainable, coherent in design, and composed of an array of livable, humane environments. (5) Its principles are aligned with those of ecological and regional planners and urban theorists who have called for the need for a more enlightened approach to our current methods of urban expansion and regulation. (6) I. SMART GROWTH CONCEPTS Principles of smart growth, sustainable development, and New Urbanism have dominated discussions about urban form and sprawl in the last decade. (7) In its call for compact development, mixed use, and public transit, smart growth has naturally allied with a number of movements: historic preservation, downtown redevelopment, environmentalism, visual quality, public transit, bicycling, and pedestrianism. (8) The need for smart growth extends beyond the bounds of urban planning practice. The problem of urban deconcentration has been expounded by environmentalists, (9) as well as economists. (10) Both groups are now intimately involved in exposing the liabilities of current urban growth patterns. Environmentalists speak of the need to reduce the ecological footprint of cities, whereas economists speak in terms of rectifying externalities and social costs. In either case, the objectives are fundamentally the same. Many authors have focused on designing specific solutions to these consolidated views. They have addressed the need for compact, walkable urban areas with mixed uses that re-invigorate the public realm; lessen reliance on auto use; enable public transit; and socially, culturally, and economically integrate regions. (11) Smart growth principles address two related problems: spatial separation of land use and lack of mobility. Remedies for the problem of spatial separation include mixing land uses and creating diverse environments similar to traditional, older cities. …

The Islamic viewpoint on new assisted reproductive technologies.

Abstract: INTRODUCTION The desire to have one's own offspring is a very strong human instinct. The Quran, the holy book of Muslims, documents this fact: "Wealth and progeny are the allurements of this world." (1) A common supplication of Muslims is, "And those who pray, Our Lord, grant unto us spouses and offspring who will be the comfort of our eyes." (2) On the other hand, Muslims believe that God ordained that some couples would be infertile. "He creates what He wills. He bestows male or female children to whom He wills. He bestows both male and female children (to some) and He leaves barren whom He wills." (3) Islam also acknowledges that infertility is a significant hardship. (4) The Quran gives the example of two prophets, Abraham and Zacharyyia, peace be upon them, who were barren and described how they longed to have children of their own, even as they grew old and almost despaired of having children. "Then did Zacharyyia pray to his Lord, saying, `O my Lord! Grant unto me from You a progeny that is pure, for You are He that hears the Prayers.'" (5) The method they used to achieve their goal was to ask God repeatedly and sincerely with humility and faith. Eventually God answered their prayers. "And the angels gave Abraham glad tidings of a son endowed with knowledge!" (6) This does not mean that Islam asks the infertile couple only to pray to overcome this problem. A basic Islamic principle permits persons facing hardship to use all lawful means to solve their problem, while at the same time preserving their trust in God that He will help them achieve their goal. This is especially true in matters of health and disease. Prophet Muhammad, the prophet of Islam, stated, "For every disease God has created a cure except senility [meaning death]. So progeny of Adam seek cure for your ailments!" (7) This is conditioned on the use of lawful means and the sincere belief that God is the ultimate source of cure. (8) As Abraham is reported in the Quran as saying, "And when I get sick it is He who cures me." (9) Thus, it is clear that infertile couples are instructed and encouraged to seek cure of their infertility, but within the limits of what is permissible in Shari'ah. (10) The command to seek cures for disease also applies to physicians and other healthcare providers. As a result, discovery of new methods for the treatment of infertility, as well as all other diseases, is, in principle, a perfectly legitimate pursuit, but with the caveat that harmful or illegitimate methods are not to be used. (11) The Quran describes as losers in the Hereafter those who "learn that what harms them and does not benefit them." (12) The Prophet's supplications include, "Oh God, teach me what is useful," and, "I seek God's refuge from all knowledge that is harmful." (13) I. THE RISE OF MODERN REPRODUCTIVE TECHNOLOGY Until recently, the treatment for fertility was mainly by medications to correct hormonal deficiency, or by surgery to correct anatomical defects. These treatments were mostly non-controversial from an ethical or religious point of view. The recent advent of assisted reproductive technologies ("ARTs"), however, changed this situation dramatically. These technologies transferred the process of procreation from a private, personal relation between husband and wife, into artificial means in a lab, and, in many instances, involving a third or fourth party in the process. These changes in the procreative process challenge basic religious and ethical concepts. (14) Before describing the specific reproductive procedures and the Islamic view of these procedures, how Muslim jurists derive their religious opinions on whether a certain procedure is permissible will first be explained. A. Background of Islamic Law The primary sources of Islamic law, the Shari'ah, (15) are the Quran, the true word of God, and the Prophet's traditions and sayings that have been preserved over the centuries as His Sunnah. …

A goodness-of-fit ethic for informed consent.

Abstract: INTRODUCTION The orientation of legal advocates and social policy makers regarding the rights of the mentally infirm has shifted considerably over the years. Historically, adults with known mental disorders were presumed incompetent and restricted from opportunities to make decisions for themselves. (1) Disregard for the rights of institutionalized and impaired persons resulted in abuses, such as the infamous case at the Willowbrook State School, where biomedical researchers infected children identified as "mentally defective" with viral hepatitis without their knowledge, and with the questionable voluntary consent of their parents. (2) In the wake of Willowbrook, advocates for people with mental retardation have made significant legal gains for individuals with decisional impairments. This movement led to including policies requiring the deinstitutionalization of individuals whose futures had largely been relegated to severely restricted institutional living, regulations for intermediate care facilities, court decisions guaranteeing the right of persons with mental retardation to make their own decisions, and ultimately, recognition by the courts that a diagnosis of a mental disorder is not a presumption that the individual is incompetent to make decisions. (3) Despite these gains, balancing the obligation to respect the rights of those with mental impairments to be treated as autonomous members of the moral community with the need to ensure that ill-informed or incompetent decisions will not jeopardize their welfare remains an ongoing ethical challenge for legal advocates, practitioners, and family members. (4) This Essay argues that informed consent policies for adults with mental disorders need to reflect a relational approach that re-conceptualizes consent vulnerability in terms of a "goodness-of-fit" between patient characteristics and the consent context. I. CONSENT VULNERABILITY AS A RELATIONAL CONSTRUCT Adults with mental disorders, like all people, are linked to others in relationships of reciprocity and dependency. (5) Conceptualizing consent impairments as a product of the relationship between the person and the consent context shifts ethical inquiry away from an exclusive focus on the patient's or research participant's mental infirmities. Instead, it focuses on those aspects of the consent setting that are creating or exacerbating consent vulnerability, and considers how the setting can be modified to produce a consent process that best reflects and protects the patient's/participant's hopes, values, concerns, and welfare. (6) From a relational perspective, morally responsible informed consent practices require more than simply evaluating whether a patient/participant understands the nature, risks, and benefits of procedures for which consent is sought, toward a reconfiguration of the consent context itself. Such reconfigurations involve remedial efforts to enhance consent comprehension coupled with efforts to attain mutual understandings among consent stakeholders regarding their values and concerns. (7) Embedded in law and professional standards, the modern doctrine of informed consent is too often grounded in a limited definition of autonomy that is restricted to respect for an individual's right to self-governance and privacy. (8) However, as Professor James Childress has pointed out, the ideal of autonomy must be distinguished from the conditions for autonomous choice. (9) Within this framework autonomy need not be conceptualized as isolated or isolating, (10) but as an expression of connectedness to others. From this relational perspective, respect for autonomy requires that practitioners and investigators make every attempt to create a goodness-of-fit between the person and the consent context that maximizes opportunities for the individual to provide informed, rational, and voluntary decisions. …

Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes The Most Dangerous

Abstract: INTRODUCTION The movement that calls itself "therapeutic jurisprudence" (1) is both ineffective and dangerous, in almost the same way that its predecessor--the rehabilitative movement that became popular in the 1930s and was abandoned in the 1970s--was both ineffective and dangerous. Drug use, shoplifting, and graffiti are no more treatable today than juvenile delinquency was treatable in the 1930s. The renewed fiction that complex human behaviors can be dealt with as if they are simple diseases gives the judicial branch the same kind of unchecked and ineffective powers that led to the abandonment of the rehabilitative ideal in the 1970s. In fact, this new strain of rehabilitationism has produced a judiciary more intrusive, more institutionally insensitive and therefore more dangerous than the critics of the rehabilitative ideal could ever have imagined. I. THE REAL FACE OF THERAPEUTIC JURISPRUDENCE In a drug court in Washington, D.C., the judge roams around the courtroom like a daytime TV talk show host, complete with microphone in hand. (2) Her drug treatment methods include showing movies to the predominantly African-American defendants, including a movie called White Man's Birth. (3) She often begins her drug court sessions by talking to the "clients" (4) about the movies, and then focusing the discussion on topics like "racism, justice, and equality." (5) The judge explains her cinemagraphic approach to jurisprudence this way: Obviously they need to talk about their own problems and what leads to them, but I also think that it's good to have distractions in life. I've found out that if there are periods of your life when you are unhappy, sometimes going out to see an interesting movie or going out with a friend and talking about something else, or going to the gym to work out, these kinds of things can help you through a bad day. (6) After the film discussion, the session begins in earnest. Defendants who are not doing well are scolded and sometimes told stories, often apocryphal, about the fates that have befallen other uncooperative defendants or the drug court judge's own friends and family members. (7) Some defendants are jailed for short periods of time and/or regressed to stricter treatment regimens, and eventually some are sentenced to prison. (8) The audience applauds defendants who are doing well, and the judge hands out mugs and pens to the compliant. The judge regularly gives motivational speeches that are part mantra and part pep rally. Here is a typical example: Judge: Where is Mr. Stevens? Mr. Stevens is moving right along too. Right? Stevens: Yep. Judge: How come? How come it is going so great? Stevens: I made a choice. Judge: You made a choice. Why did you do that? Why did you make that choice? What helped you to make up your mind to do it? Stevens: There had to be a better way than the way I was doing it. Judge: What was wrong with the way you were living? What didn't you like about it? Stevens: It was wild. Judge: It was wild, like too dangerous? Is that what you mean by wild? Stevens: Dangerous. Judge: Too dangerous, for you personally, like a bad roller coaster ride. So, what do you think? Is this new life boring? Stevens: No, not at all. Judge: Not at all. What do you like about the new life? Stevens: I like it better than the old. Judge: Even though the old one was wild, the wild was kind of not a good wild. You like this way. Stevens: I love it. Judge: You love it. Well, we're glad that you love it. We're very proud of you. In addition to your certificate, you're getting a pen which says, "I made it to level four, almost out the door." (9) This is the real face of therapeutic jurisprudence. It is not a caricature. …

Religious teachings and reflections on advance directive--religious values and legal dilemmas in bioethics: an Islamic perspective.

Abstract: INTRODUCTION In this presentation, the following Islamic concepts will be briefly outlined--the sanctity of life, the concept and definition of death, end-of-life issues, and the resulting issues of advance directives, pain control and comfort care. Some relevant case studies from the author's personal experience that highlight these dilemmas will also be explored. I. THE PURPOSE OF LIFE Islam means submission/peace--submission to the will of one God (Allah) and His will, and peace defined as inner peace with oneself, one's Creator, and His creations. (1) The key elements are true belief and righteous deeds. (2) We were created to serve (worship) God (Allah). He entrusted us with our lives, physical beings, wealth, families, communities, environment, and our earth. (3) Our responsibility is to care for and maintain that trust. (4) Muslims (followers of Islam) believe that life on this earth is only a transition period that precedes the more eternal permanent life in the Hereafter. (5) Muslims are encouraged to constantly prepare themselves, by deeds and action, for the Hereafter. The Prophet Muhammad is reported to have said, "Work for this life as if we are living forever, and work for the later life as if you are dying tomorrow." (6) II. THE SANCTITY OF LIFE Life is a girl from the Creator, and we are expected to take care of this gift to the best of our abilities. From Qur'an (7) 5:32 And if any one saved one life It would be as if he saved the life of the whole people III. THE CONCEPT OF DEATH IN ISLAM The following passages express the concept of death in Islam: Qur'an 3:185 Every soul shall have a taste of death: And only on the Day of Judgment shall you be paid your full recompense. Only he who is saved far from the Fire and admitted to the Garden will have attained the object (of Life): For the life of this world is but goods and chattels of deception. Qur'an 3:145 Nor can a soul die except by Allah's leave, the term being fixed as by writing. If any do desire a reward in this life, We shall give it to him; And if any do desire a reward in the Hereafter, We shall give it to him. And swiftly shall We reward those that (serve us with) gratitude. Qur'an 39:42 It is Allah that takes the souls (of men) at death; And those that die not (He takes) during their sleep: Those on whom He has passed the decree of death, He keeps back (from returning to life), But the rest He sends (to their bodies) for a term appointed. Verily in this are Signs for those who reflect. A. Definition of Death The following passages help define death in Islam: Qur'an 45:26 Say: "It is Allah Who gives you life, then gives you death; Then He will gather you together for the Day of Judgment about which there is no doubt": But most men do not understand. Qur'an 23:100 "In order that I may work righteousness in the things I neglected"--" By no means! It is but a word he says"-- Before them is a Partition till the Day they are raised up. Footnote 2940 Barzakh: a partition, a bar or barrier; the place of state in which people will be after death and before Judgment. Cf. 25:53 and 55:20. Behind them is the barrier of death, and in front of them is the Barzakh, partition, a quiescent state until the judgment comes. While the inevitability of death is made fairly clear in the above verses, the exact definition of death remains vague. When does one die? When the heart stops beating? When breathing stops? When the brain stops functioning? In Qur'an 39:42, Allah states that He takes away the souls upon the death of a person. Where does the soul reside, and how do health providers or lawyers determine that at the bedside? …

The cra implications of predatory lending

Abstract: INTRODUCTION Traditionally, policymakers, communities, and industry have regarded the Community Reinvestment Act ("CRA") (1) as a positive mandate for banks and thrifts (2) to do good by increasing investment in low- and moderate-income ("LMI") neighborhoods. (3) The specific purpose of CRA is to encourage federally insured depository institutions "to help meet the credit needs of the local communities in which they are chartered consistent with the safe and sound operation of such institutions." (4) When Congress enacted CRA in 1977, it was in response to the prevailing belief that under-investment was a root cause of blight in LMI neighborhoods. Congress hoped to reverse this blight by creating incentives for banks to increase their lending activities in low-income communities. At the time, it was inconceivable that LMI neighborhoods might eventually have too much credit in the form of abusive mortgages that would trigger a surge in foreclosures and force homeowners to forego heat and medical care to pay their mortgages and thus keep their homes. However, by the late 1990s, the unimaginable had happened. Predatory mortgages (5)--exploitative high-cost loans to gullible borrowers--were ravaging inner cities and newspaper headlines across the country were carrying accounts of foreclosures against low-income people of color and the elderly. In this article, we seek to understand the intersection between CRA and predatory lending by answering the following questions: does CRA reward banks for engaging in predatory lending or activities that indirectly support predatory lending? do federal subsidies indirectly support predatory lending? should CRA create disincentives to banks that engage in or provide indirect support for predatory lending? should CRA be extended to impose anti-predatory lending provisions on non-bank lenders, (6) including non-bank affiliates and subsidiaries of banks? is there a role for CRA to play in rewarding bank activities that combat predatory lending? In examining these questions, we are mindful that CRA is a limited and imperfect tool for achieving community reinvestment. In particular, CRA raises controversial issues, regarding the efficient allocation of credit, competitive parity, safety and soundness, and regulatory taxation. (7) Despite its flaws, CRA has established a beachhead for community development finance across the country and has become institutionalized at major banks. Furthermore, having survived the enactment of the Gramm-Leach-Bliley Act of 1999 intact, albeit modified, CRA is here to stay for the time being. (8) Just as there are challenges to the utility of CRA in general, there are some who contend that CRA is an inappropriate tool to combat predatory lending. Thus, a threshold question is whether there are legitimate justifications for using CRA to address predatory lending. We have identified two such justifications that we develop more fully infra. The first justification stems from the CRA's goal of encouraging banks to serve the credit needs of their communities. If CRA is creating incentives for banks to engage in predatory lending, then CRA is actually defeating one of its stated goals. Our second justification arises from the fact that banks are the recipients of special government privileges in the form of exclusive charters, federal deposit insurance and so forth. These subsidies are considered part of the rationale for imposing CRA obligations on banks. (9) If banks use these privileges to harm the communities they serve, there is a role for CRA in scrutinizing bank activities. (10) We divide this article into three parts. In Part I, we outline the relevant provisions of CRA. In Part II, we consider how CRA-covered lenders may enable predatory lending, either directly or indirectly. We also discuss the relationships among CRA, federal subsidies and predatory lending. …

Assisted Reproductive Technologies and the Constitution

Abstract: Assisted reproductive technologies ("ARTs") have generated a host of new choices that were unimaginable to persons in previous generations. Since the first child conceived through in vitro fertilization ("IVF") was born nearly twenty-five years ago, infertility has been transformed from an uncontrollable life circumstance into a "disease," and medical treatment has come to be seen as the standard response. (1) ARTs have also expanded reproductive options for individuals without fertility problems. Donor insemination, available since the 1950s, but not taking off until the 1970s and 1980s, (2) permits women to have children without a partner of the opposite sex. With egg donation, women can reproduce long after menopause, (3) and the ability to freeze gametes and embryos means that even death need not mark the end to one's reproductive life. (4) In addition to expanding individuals' choices about whether and when to reproduce, ARTs increasingly offer the ability to control specific characteristics of one's future children. Through pre-implantation genetic diagnosis ("PIGD"), individuals who undergo IVF can screen their embryos for certain genetic diseases and select for implantation only those embryos that are not affected. (5) These technologies are not limited to the identification of disease-related characteristics; already, some physicians are using PIGD, as well as less accurate, but less controversial sperm-sorting technologies, for prospective parents who want to have children of a particular sex. (6) Future developments in trait selection technologies, including techniques for affirmative genetic manipulation, may give individuals even greater control over their children's genetic makeup. (7) Eventually, cloning may become the ultimate form of controlled procreation; if the somatic cell nuclear transfer technique used to create Dolly the sheep proves successful in humans, a child created in this manner would have virtually the identical genetic makeup as the person from whom the somatic cell was obtained. (8) As indicated by the diverse speakers at this conference, there is substantial disagreement about whether the new choices offered by ARTs are a positive social development. Speaking from a Roman Catholic perspective, Helen Alvare argued that separating sex and procreation is invariably harmful, because the conception of a child should always result from an intimate and loving act. (9) In contrast, others maintained that ARTs offer important benefits to infertile couples, particularly those whose religious beliefs preclude legal adoption. (10) Yet, even among this latter group, some speakers expressed concern about certain aspects of ARTs. Cynthia Cohen, for example, argued that using ARTs "to produce made-to-order children who have been shaped to meet arbitrary parental or social standards of beauty or perfection" raises significant problems from a Protestant theological perspective. (11) Although stopping short of calling explicitly for legal prohibitions on trait-selection technologies, she noted that the use of ARTs to engineer particular types of children risks "reinforcing discriminatory and harmful stereotypes" (12) and "raises the question of what sort of society we want to become." (13) Proposals for greater social oversight of ARTs challenge us to confront basic questions about the allocation of authority between individuals and society in the area of reproductive decision-making. Should decisions about the use of ARTs be viewed as primarily private matters, to be presumptively protected from societal control? Or is the technological transformation of reproduction a species-level issue, (14) in which individual preferences should give way to a collective determination of the overall social good? Under the former view, the role of public policy would be limited to purposes such as facilitating informed decisions by individuals, (15) enhancing the quality of services by ART practitioners, (16) and clarifying the parental rights and responsibilities of persons involved in the process. …

Protestant perspectives on the uses of the new reproductive technologies.

Abstract: INTRODUCTION Ever since Adam and Eve brought forth the first children, human beings have tried to capture the processes of procreation and bring them under control. We find midwives assisting with childbirth as early as Exodus in scripture, and Caesarian section birth is seen in use in ancient Rome. (1) The pace of human interventions into procreation has increased rapidly over the generations to the point where today we are faced with an explosion of radically new methods that can be used to revise and repair reproductive processes. Technologies such as in vitro fertilization and egg donation are increasingly being employed for those who are infertile. (2) Reproductive cloning and the use of artificial wombs to bring children into the world are on the horizon. (3) Protestant denominations span a broad range of views about the morality of employing such new reproductive technologies. (4) Although they embrace normative standards of conduct, many denominations do not have a central teaching authority to guide members who are concerned about whether to use these new ways of conceiving and bearing children. (5) Such questions are among matters of substantial morality left to individual conscience, guided by scripture, tradition, reason, and experience. Since these various resources are each interpreted in somewhat different ways within Protestant thought, it is not possible to state the Protestant moral position about the use of the new reproductive technologies. Even so, certain relevant values and beliefs at the core of Protestant thought can be canvassed to gain a sense of how those adhering to this form of the Christian tradition tend to view the morality of employing these new technologies. The Protestant tradition places high value on individual human dignity and choice. (6) It maintains that human capacities for understanding and willing, even though flawed, still reflect the image of God. (7) Consequently, individual decisions about the use of novel reproductive technologies are owed great respect. Couples should be allowed to weigh the ends and goods toward which these technologies can be put, and to choose among them based on their understanding of what Christian ethics requires. Yet, individual human beings are not isolated atoms, (8) and procreation is not exclusively a private matter. (9) Bringing children into the world is a shared activity involving a relationship between prospective parents, and should children result from their relationship, another between parents and children. Moreover, procreation is inseparable from broader social relations and goods, in that it brings new members into the community who are owed care and. protection. Consequently, the way in which children are conceived and born, for the Protestant tradition, is not only a matter of individual concern, but also of familial, social, and Christian concern. Evaluating which, if any, are appropriate uses of the new reproductive technologies within the Protestant tradition requires consideration of Christian teachings about the meaning of procreation, the good of the resulting children, and the integrity of family bonds. Such considerations have led many Protestant thinkers to contend that it is morally acceptable for individuals to employ these novel methods of creating children, but within certain limits. (10) Protestant thinkers differ, however, about exactly where these limits should be drawn. Even so, a certain degree of agreement can be found among them. I. REPRODUCTIVE TECHNOLOGIES AND THE PURPOSES OF SEX To understand the predominant Protestant approach to the use of reproductive technologies, it is necessary first to grasp the significance of procreation within Protestant thought. This can be better understood and explicated by contrasting it with Jewish thought. Within Judaism, procreation is heavily emphasized as the major end of sexuality within marriage. …

Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations

Abstract: INTRODUCTION The current national debate surrounding judicial independence arguably began in 1996 when both presidential candidates engaged in disingenuous political rhetoric about United States District Judge Harold Baer. (1) The national discussion about judicial independence (2) is by no means a new discussion. It dates back to the early common law, (3) the formation of the American democracy, and the constitutionalization of the American judicial system. When the colonists declared their independence from England, they compiled a list of grievances setting forth justifications for their actions. One of the listed grievances against King George III in the American Declaration of Independence concerned the King's control of the British judiciary. Categorizing the King's control of the British judiciary as an obstruction of justice, the patriots declared that "[the King] has made Judges dependent on his Will alone for the Tenure of their Offices, and the Amount and Payment of their salaries." (4) Control of the judiciary, however, was not a creation of King George III's reign. (5) It predated his reign by decades, and in fact had been somewhat ameliorated prior to George III's reign when King James II was deposed during the Glorious Revolution of 1688. (6) Nonetheless, at the time of the American Revolution the founders of the new country remained concerned about a controlled judiciary. (7) Although comparatively little time was spent debating and structuring the judiciary in the proposed three-branch government, the proposed Constitution provided for permanent tenure for federal judges "during Good Behaviour" and forbid any reduction in federal judicial salaries. (8) The federal judges were empowered to hear a large variety of cases, although Congress maintained the authority to expand or contract the size as well as the jurisdiction of the courts. (9) Additionally, the intermingled tripartite system of government with its "great organizing principle, the separation of powers" doctrine, (10) reiterated the commitment of the founders to a separate and independent judiciary. The commitment to the formation of a new government with an independent judiciary in no way assured that the doctrine of judicial independence would not be challenged. From the very beginning of the American judiciary (11) until the Judge Baer fiasco in 1996 and after, (12) the doctrine has been questioned, challenged, and at times, fiercely opposed. (13) I. THE ABSOLUTE NECESSITY OF JUDICIAL INDEPENDENCE One who clearly understands judicial independence cannot comprehend how it could be opposed. A judiciary that is not independent of the other branches of government is subject to their control. Judicial decisions would be influenced, if not dictated, by political pressures, threats, and intimidation. A nation whose judiciary was controlled by the legislative or executive branch would offer no stability to its citizens or corporations as to their legal rights or responsibilities. The effect of a controlled judiciary is often illustrated by reference to intrusion upon personal liberties. The effect of a dependent judiciary on commercial interests, however, would be equally devastating. Consistent enforcement of contract rights, zoning laws, and employment regulations are crucial to business development. The coexistence in America of a stable, independent court system and a thriving national economy is hardly coincidental. Investors and developers cannot risk doing business in an unstable legal environment where their legal rights depend on who is in power. They depend on uniform application of the law by a judiciary that is not swayed by either majority opinion or political power, but is instead guided by precedent and the rule of law. If no free-enterprise capitalist could sensibly oppose judicial independence, why do so many of our national leaders assert positions in direct conflict with it? …

The Cycle of Judicial Elections: Texas as a Case Study

Abstract: I. INTRODUCTION A. Background on Judicial Elections Unlike the federal model of judicial selection, the model for the selection of state judges has undergone significant change throughout American history. (1) Until the mid-1800s, state judicial selection generally adhered to the federal model, emphasizing the appointment of judges. Typically, judges were selected by gubernatorial appointment coupled with confirmation by a special commission or the legislature; in some cases, judges were appointed directly by the state legislature. (2) The emergence of Jacksonian egalitarian democratic ideals in the nineteenth century brought about a growing belief that judges, like other public officials, should be accountable to the voting public. (3) As that ideal gained acceptance among reformers, states began moving away from legislative and gubernatorial appointment and toward the selection of judges by popular election. In 1832, Mississippi became the first state to provide for the selection of its judges by popular election. New York followed in 1846. For the next sixty-five years, every new state to enter the Union provided for some or all of its judges to be chosen by popular Election. (4) When popular judicial election began in Mississippi and New York, judges typically ran on partisan ballots, campaigning alongside their fellow party candidates. In the latter part of the nineteenth century, however, Progressive reformers grew increasingly concerned with the influence of party bosses, who often gave judicial nominations to the party faithful, instead of the most qualified candidates. (5) To quell judicial selection by party leaders, reformers pressed for nonpartisan judicial elections. (6) In the closing decades of the 1800s, the legal profession also responded to the extraordinary influence of parties over judicial selection. Lawyers began organizing bar associations largely to promote judicial selection based on qualifications rather than party patronage. (7) In the mid-twentieth century, reformers began advocating the "Missouri Plan," which removed the initial selection of judges from popular control but retained the Jacksonian ideal of electoral accountability. (8) Under this plan, judges are appointed by a governor from a list prepared by a judicial nominating committee. The judges appointed under this plan then run in periodic, uncontested "retention" elections where voters are allowed to determine whether the judge remains in office. (9) Contested elections, however, have not been eliminated. Thirty-nine states still select some judges through popular election, and eleven states select their supreme court justices in partisan elections. (10) In spite of the Missouri Plan's initial popularity, the wave of reform that accompanied its early years has waned. Judicial elections are now the norm and their weaknesses require wholesale reform. A clear understanding of judicial elections will shed light on how to improve the process of selecting judges. This Article focuses on Texas, whose history often foreshadows the experience of other states. B. The Case of Texas In its first five years of statehood, Texas was a microcosm of the early national experience with state judicial selection. Initially, judges were appointed by the governor and approved by the Texas senate. (11) Then, in 1850, the influence of Jacksonian Democracy led to the adoption of judicial selection by popular election. (12) Under Reconstruction, Texas returned to the gubernatorial appointment of judges. (13) However, largely in response to abuses of the gubernatorial appointment power during Reconstruction, Texas included a provision in its current constitution, adopted in 1876, for the selection of judges by popular election. (14) While the Texas constitution does not require that judicial candidates run on partisan ballots, Texas election law encourages judicial candidates to run as party Nominees. …

Smart growth and sustainable transportation: can we get there from here?

Abstract: INTRODUCTION As the U.S. Supreme Court has observed, "[D]riving an automobile [is] a virtual necessity for most Americans." (1) Transportation and land use laws and policies have played a primary role in creating this dependence on motor vehicles; they have spurred scattered suburban development and promoted driving. At the same time these laws and policies have made other transportation options--such as public transit, bicycling, and walking--less practical, desirable, and safe. (2) As a result, driving is often a necessity rather than a choice. The dominant transportation and development approaches of the past fifty years have offered significant benefits, including job creation, economic growth, and increased mobility. However, the adverse consequences of these approaches are substantial. These consequences include severe air and water pollution; accelerating land consumption; worsening traffic congestion; record expenditures of public funds for road projects and far-flung development; isolation of senior citizens and others who cannot drive; lack of access to jobs for low income individuals; deteriorating older suburban and urban areas; and threats to national security due to dependence on imported oil. (3) New paradigms are emerging to address these shortcomings. Changes to transportation policies have begun to move to a more sustainable (4) approach that reduces subsidies for driving, offers a broader range of transportation choices, and addresses the links between transportation, land use development, environmental quality, and community livability. (5) In addition, a flurry of state and local initiatives have begun to provide alternatives to scattered development and excessive motor vehicle use. (6) These initiatives, often lumped together under the label "smart growth," (7) vary widely. (8) They include efforts to develop a more balanced transportation system; revitalize existing communities; preserve open space and farmland; and promote development that offers a variety of land uses in close proximity and that can support public transit, bicycling, and walking. Public opinion polls and ballot box returns indicate strong public support for these steps. (9) Smart growth is not anti-growth, and sustainable transportation is not necessarily anti-automobile. Rather, these paradigms seek to reduce the adverse impacts of current land use and transportation patterns and practices, while preserving their benefits. Central to these efforts is a focus on reorienting current public policies that promote costly and destructive transportation and land use development patterns towards more economically efficient, equitable, and environmentally sound outcomes that strengthen communities and enhance the quality of life. Sustainable transportation and smart growth are linked. Smarter growth patterns will be difficult to achieve without more sustainable transportation approaches; significant transportation improvements will be difficult to achieve without more sensible development practices. The first Part of this Article provides an overview of current transportation policies, as well as their inconsistency with the smart growth approach. Part II examines steps that can be taken to create a more efficient and less destructive transportation system, as well as some of the hurdles to transportation reform. Part III concludes the Article by considering recent events in Atlanta--the country's most sprawling metropolitan area--that highlight both opportunities and hurdles for smart growth and sustainable transportation. I. HOW DID WE GET HERE? ROADS, DRIVING, AND SPRAWL Rapidly rising motor vehicle use and exploding suburban development have transformed the United States since World War II. (10) These trends are integrally linked and mutually reinforcing: building more roads leads to more sprawl; more sprawl leads to more driving. …

Protestant perspectives on informed consent (particularly in research involving human participants).

Abstract: INTRODUCTION It is virtually impossible to state the Protestant position on any bioethical problem or issue. As a result, interpreters must focus on one Protestant position or, at most, identify a few Protestant positions with respect to a particular bioethical problem. Thus, in addressing my assigned topic, I will focus on selected Protestant perspectives on informed consent/refusal, particularly in the context of research involving human subjects or participants. Several factors contribute to this limitation, not the least of which is that a couple of hundred denominations in the United States march under the banner of Protestantism. (1) Even if we start with the major Reformation traditions, we discover that the Lutheran and Calvinist (Reformed) traditions have splintered, (2) and that the so-called "radical" Reformation, or "left-wing" of the Reformation, encompasses numerous other groups, including the Anabaptists, a label that also covers different denominations. (3) An attempt to discern a broad Protestant tradition, in contrast to traditions, would necessarily operate at a very high and largely uninformative level of generality. For example, Paul Tillich identified what he called "the Protestant principle," which represents "the divine and human protest against any absolute claim made for a relative reality, even if this claim is made by a Protestant church." (4) For Tillich, this principle is "the theological expression of the true relation between the unconditional and the conditioned or, religiously speaking, between God and man." (5) It is "the guardian against the attempts of the finite and conditioned to usurp the place of the unconditional in thinking and acting." (6) However important this principle is, it provides little guidance about Protestant beliefs and practices, including bioethics. Yet another limitation is also worth noting. The assigned topic of informed consent, with particular attention to research involving human subjects or participants, has not received extensive treatment in Protestant denominational statements and guidance. To illustrate, I will draw examples from the valuable Park Ridge Center series on different religious traditions' beliefs and practices regarding health care. The document on the Lutheran tradition notes that "consistent with their general respect for medicine and informed decision making, [Lutherans] are likely to favor self-determination and informed consent." (7) The document on the Presbyterian tradition (out of the Calvinist or Reformed tradition) notes that, because of the emphasis on freedom of conscience, Presbyterians would emphasize free exchange of information by patient and caregiver and would tend to err on the side of patient autonomy rather than caregiver paternalism. Turning to research involving human subjects, the document notes that the Presbyterian Church (U.S.A.) "generally supports self-determination and informed consent in medical procedures and experimentation. The General Assembly advocates that `human subjects be given the strongest human protections, including full information about the research, and that their consent be obtained without coercion.'" (8) The Park Ridge Center report on Anabaptist beliefs and practices--including the Mennonites and Amish--notes that no official positions were found on therapeutic or nontherapeutic medical experimentation on various populations or on self-determination and informed consent, but, the report continues, the Anabaptist tradition's theological-ethical beliefs, such as God's creation of persons in his own image and noncoercion in religious matters, tend to support self-determination and informed consent in such settings. (9) The report on the United Methodist tradition stresses that, for Methodists, personal autonomy and self-determination are highly valued because God has created human beings in his own image. …

Informed Consent without Autonomy

Abstract: A HYPOTHETICAL CASE Mrs. Mary Carpenter has experienced post-menopausal vaginal bleeding. Her gynecologist, Dr. John, diagnosed endometrial cancer and recommended a hysterectomy. She and her husband, Joe, go to visit Dr. John at his office at Good Samaritan Catholic Hospital to discuss their options. Dr. John explains the indications for the procedure, the nature of the procedure, the risks and benefits, and the alternatives, including second opinions and not having the procedure. In order to ensure that Mary and Joe have understood everything, Dr. John asks them to repeat back what they have heard. After they take a moment to discuss it among themselves, Mary signs the informed consent form, and they make plans for the operation. INTRODUCTION Although scenarios like this one occur routinely throughout the United States at Catholic hospitals, public hospitals, for-profit hospitals, and not-for-profit hospitals, no one knows how often the process is conducted properly. It would seem that the same steps would be taken in each of the above settings since the Ethical and Religious Directives for Catholic Health Care require informed consent, just as secular ethics and law do. (1) Consequently, it might also seem as if the question of whether there is anything distinctive about Catholic medical ethics and informed consent is really a non-question. However, I want to suggest that while it may superficially appear that there is nothing distinctive about a Catholic approach to informed consent, the practice of informed consent in Catholic and secular settings may really be similar only by homology and not by phylogeny. (2) That is to say, the two practices may look the same, but the explanation, origin, and development of informed consent is really very different in Catholic and secular thought. These differences, thankfully for the sake of social harmony, are only apparent at the extreme edges of case analysis. However, because there are occasionally difficult cases, it is worthwhile to understand the distinctions. Furthermore, because the substance of each approach is essentially different, they cannot both be correct. In this Essay, I will attempt to accomplish two things. First, I will explain why and how the basis for the practice of informed consent in the context of Roman Catholic thought differs from the common secular justification. Second, because Catholic moral thought uses the natural law tradition, I will argue that, philosophically, the justification that I offer is actually the correct one and, consequently, the better one for secular society to adopt. These arguments can be made independently of any explicitly religious assumptions. I. THE COMMONLY HELD VIEW The "received," or commonly held, view is that informed consent is an obligation of physicians and other health care professionals founded upon respect for autonomy. (3) Autonomy, in turn, is generally defined as the ability of the individual to be self-determining, to make choices according to her own views, and to determine for herself what is good. (4) This sort of thinking seems to undergird Justice Benjamin Cardozo's famous quote about informed consent: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault...." (5) Under the commonly held view, this applies to Mrs. Schloendorff, the plaintiff alluded to by Cardozo, as well as to the Mary Carpenters of the world. This is also the view put forth in the contemporary bioethics literature on the ethical justifications for the practice of informed consent. For example, Berg and her co-authors state that, "[t]he values underlying informed consent [are] autonomy and concern for individual well-being." (6) They contend that the moral theory undergirding this view is that "[p]ersons can exercise their wills, their self-ruling capacities, their autonomy. …

Civil Legal Assistance for Low-Income Persons: Looking Back and Looking Forward

Abstract: INTRODUCTION Civil legal assistance for indigents in the United States began in New York City in 1876 with the founding of the Legal Aid Society of New York (1) In 1965, the federal government appropriated funds for legal services through the Office of Economic Opportunity and started the Legal Services Program (2) In 1974, Congress passed the Legal Services Corporation Act (3) and, in 1975, the Legal Services Corporation assumed control of the programs started by the Office of Economic Opportunity (4) Until recently, the primary funder of civil legal assistance in the United States has been the legal services program funded by the Legal Services Corporation (LSC) (5) The Legal Services Program is currently undergoing major transformation Since 1995, the landscape of legal aid providers has substantially changed Six years ago, the civil legal assistance system funded by the LSC consisted primarily of full-service providers, each serving one geographic area Each provider had the responsibility and capacity to provide high-quality legal assistance and ensure access by all clients to the legal system (6) Today the full-service provider has been replaced in sixteen states by two direct service providers that operate statewide in the same geographic areas In over twenty large or medium size cities, instead of one full-service provider, there are now two (7) In addition, the number of LSC providers has declined from over 325 grantees in 1995 to 176 grantees at the beginning of 2002 Local program grantees have been reduced from 292 to 172 (8) Moreover, because of new restrictions on advocacy and categories of persons represented, (9) LSC-funded legal services programs can no longer engage in activities previously open to them Although there have been some restrictions on LSC-funded legal services programs, (10) in April 1996, Congress imposed a new set of restrictions on funding through appropriation provisions LSC grantees can no longer use funds available from non-LSC sources to undertake activities that are restricted with the use of LSC funds The new legislation restricts all of a grantee's funds regard less of the source (11) These "entity" restrictions are unique and unprecedented With a few narrow exceptions, recipients are precluded from advocating and providing representation before legislative bodies and in administrative rulemaking proceedings (12) In addition, recipients cannot initiate, participate, or engage in any new class actions, and were required to discontinue work on pending class actions by August 1, 1996 (13) Recipients cannot claim, collect, or retain attorneys' fees from adverse parties from cases initiated after April 25, 1996, even when the fees are otherwise permitted by statute (14) Until a recent Supreme Court decision, (15) recipients could no longer challenge state or federal welfare reform laws or regulations, and some welfare reform activities are still prohibited (16) Recipients are prohibited from providing representation in redistricting cases, participating in any abortion-related litigation, (17) representing certain aliens, (18) participating in litigation on behalf of a person incarcerated in a federal, state, or local prisons (including pre-trial detainees), (19) and representing persons convicted of, or charged with drug crimes in public housing evictions when the evictions are based on alleged threats to the health or safety of public housing residents or employees (20) In addition, recipients must identify potential client plaintiffs by name and obtain a written statement of facts from any client plaintiff before engaging in pre-complaint settlement negotiations or filing suit on the client's behalf (21) Recipients cannot conduct training programs advocating particular public policies or political activities and cannot conduct training on prohibited cases or advocacy activities, such as lobbying, rulemaking, or collecting attorneys' fees …

The physician as a conscientious objector.

Abstract: I. ACCOMMODATION OF THE CONSCIENTIOUS OBJECTOR Rabbinic lore relates an anecdote, probably apocryphal, portraying a lively student who flits from person to person in the study hall. To each one he says, I have an answer. Ask me a question! I do not claim to have a resolution to the dilemma posed when a conflict arises between a patient's rights and a physician's conscience, certainly not a facile one. My real task is to convince those in a position to implement a solution that a problem exists and that it merits serious consideration. Patient autonomy certainly deserves both moral respect and legal protection, but to demand of a physician that she act in a manner she deems to be morally unpalatable not only compromises the physician's ethical integrity, but is also likely to have a corrosive effect upon the dedication and zeal with which she ministers to patients. Society has long recognized and been forced to come to grips with the conflict arising from a woman's right to terminate a pregnancy as announced by the United States Supreme Court in Roe v. Wade, (1) and the moral convictions of a health care practitioner that constrain her to refuse to participate in the extinguishing of nascent human life. A physician's belief that certain forms of assisted reproduction constitute a violation of natural law does not impact an infertile couple's right of procreation for the simple reason that a physician who espouses such views will choose another area of specialization. Yet, the issue of whether an employer who finds such forms of procreation to be morally offensive that must nevertheless include coverage of such forms of fertility treatment in health care insurance provided to employees represents an unresolved moral dilemma as evidenced by a recent debate in the New York legislature. (2) Finally, the courts in Tarasoff v. Regents of the University of California (3) and its progeny have long since recognized and addressed the issue of maintaining professional confidentiality in the face of imminent criminal activity. H. CONSCIENTIOUS OBJECTION VS. PATIENT AUTONOMY There remain two areas in which conflicts do exist, but are largely ignored. First, is the treatment of the terminally ill, in both the broad sense of the term and the more narrow sense, the determination of the time of death at which continued treatment is regarded as inappropriate. The second is in the field of neonatology with regard to the institution of measures designed to assure the survival of an unborn infant suffering from a serious congenital anomaly. Contemporary society has long conscientiously subscribed to the tongue-in-cheek adage formulated by Arthur Clough: "Thou shalt not kill; but needs't not strive officiously to keep alive." (4) However, there are individuals who sincerely believe that the preservation of life is a paramount value, and that the quality of life preserved is irrelevant to fulfillment of the moral imperative generated by that value. For these individuals, failure to provide aggressive treatment for even the most premature neonate, for instance the infant afflicted with spina bifida, (5) or a severe chromosomal defect, (6) is the moral equivalent of infanticide. Likewise, failure to intubate (7) a terminally comatose patient, or even to administer cardiopulmonary resuscitation, (8) when there is a realistic possibility of clinical success, constitutes passive euthanasia. These individuals would also consider employment of neurological criteria in pronouncing death nothing but a deceptive subterfuge designed to disguise an immoral act by means of semantic sleight of hand. There have been a number of instances where hospitals have declined to honor a request for discontinuance of a feeding tube and other life supporting technology. (9) However, such occurrences have been few and far between and have involved matters of institutional policy rather than an expression of the qualms of an individual physician or nurse. …

The community reinvestment act and the economics of regulatory policy

Abstract: INTRODUCTION The Community Reinvestment Act of 1977 (1) ("CRA") represents an attempt to shape the economic and social condition of communities by altering the economic policies of depository institutions. The CRA was passed to discourage disinvestment in urban, typically minority areas and to ensure that all communities, regardless of their economic or demographic characteristics, have fair access to credit. Its stated intent is vague, yet simple: to encourage each bank (2) "to meet the credit needs of its entire community, including low- and moderate-income neighborhoods, consistent with [the] safe and sound operation of the bank." (3) The CRA has stimulated debate across the ideological spectrum. (4) The CRA's supporters believe that it has provided increased access to credit in low- and moderate-income ("LMI") neighborhoods, and that it could be even more effective with greater enforcement. (5) Critics of the CRA, on the other hand, argue that the law saddles banks with substantial compliance costs and that unfettered credit markets can properly allocate credit without ponderous government regulation. (6) Even with the dismantling of the walls of separation between banking, insurance, and securities underwriting achieved by the Gramm-Leach-Bliley Financial Modernization Act of 1999, (7) the CRA remains relevant. Its relevance emanates not only from its economic impact on LMI neighborhoods and financial institutions subject to CRA regulations, but also, as this Article discusses, from its fusion of economic and social policy. The CRA illustrates how regulatory policies can have both economic consequences and social implications. The CRA's passage in 1977 was based in part on the belief that it would benefit LMI communities by providing access to more credit than would be available otherwise. (8) The Act's enforcement mechanism requires that a bank comply with the CRA when it wishes to merge, acquire existing branches, or open or close branches. (9) Thus, the CRA has direct economic effects on banks as well as on neighborhoods. LMI areas, however, also may accrue social benefits from improved access to credit. Greater credit access increases economic prospects for residents and businesses in LMI areas. Improved economic prospects can in turn improve the social condition of residents by decreasing crime, homelessness, inadequate heath care, and neighborhood instability caused by low homeownership rates. (10) These external benefits--otherwise known as positive externalities--are not limited to LMI areas themselves. High-income suburban residents enjoy activities in central cities such as cultural attractions and sporting events, and central cities continue to be major hubs of economic activity in most large metropolitan areas. A decrease in social problems in LMI communities is likely to confer positive benefits to residents in other communities as well. Because these benefits do not accrue to banks lending in LMI neighborhoods, however, banks do not take them into account when making their lending and investment decisions. This leads to a below-optimal level of lending and investment in LMI areas. By requiring banks to meet the credit needs of LMI areas in their markets, CRA lending, investment, and service requirements (11) can lead to a higher level of social benefits than would be produced absent credit market intervention. The CRA stands out as a model for regulation based on economic principles--the correction of redlining (12) and inadequate lending in LMI areas--and its attempt to encourage banks to operate in the best interest of consumers and society. Part I of this Article examines the economic issues associated with providing access to credit in LMI areas. Particular attention is paid to market failure, information asymmetries, and social welfare maximization. Market failure results, in part, from the positive externalities associated with lending in LMI areas that are not internalized by lenders. …

Trying to Fit an Oval Shaped Island into a Square Constitution: Arguments for Puerto Rican Statehood

Abstract: INTRODUCTION The presidential election between Albert Gore and George W. Bush in 2000 provided an interesting lesson on voting in America. The closeness of the race (1) highlighted the importance of the right to vote and gave some truth to the phrase "every vote counts." (2) In addition, a recount prompted by Gore in Florida yielded varying results, illustrating the surprising fact that every election has its share of uncounted votes. (3) While the nation's attention was focused on the historic spectacle in the Sunshine State, few were aware of the noteworthy events also unfolding in Puerto Rico. (4) Many Americans are aware that Puerto Rico joined the United States in 1898 (5) and that the Puerto Rican people became citizens in 1917. (6) Most Americans outside of Puerto Rico are nevertheless unaware that the U.S. citizens who live on the island have never had the right to vote in presidential elections. (7) This puzzling circumstance was challenged in anticipation of the 2000 presidential election in Igartua de la Rosa v. United States II. (8) The Federal District Court of Puerto Rico held that the 3.8 million people residing on the island, (9) 2.4 million of whom are registered voters, (10) had a fundamental right to vote in presidential elections based on their American citizenship. (11) The First Circuit quickly reversed this bold ruling, holding that Article II of the Constitution grants the power to elect the president only to the states, and not to the people. (12) This Comment highlights Puerto Rico's continuing political troubles under the U.S. Constitution and argues that the island must become the United States' fifty-first state. Part I explores the history of Puerto Rico's relationship with the United States. The Insular Cases are discussed to illustrate Puerto Rico's peculiar status under the Constitution. In addition, the legal insignificance of the island's evolution to commonwealth status will be discussed, leading to the conclusion that Puerto Rico must choose statehood to remedy its constitutional status problems. Part II reviews Igartua de la Rosa H and other relevant cases. This Part highlights the basis for limiting the right to vote in presidential elections to citizens who reside in the fifty states. It argues that the First Circuit was correct in denying this right to the people of Puerto Rico in Igartua de la Rosa H. Part II further asserts that the First Circuit's ruling is a clear signal to the people of Puerto Rico that statehood is necessary to fully legitimize their political status in the United States. Part II then considers whether the people of Puerto Rico are entitled to vote in presidential elections by virtue of their citizenship and discusses whether the Constitution grants any citizens the right to vote. This Part concludes that, at best, the Supreme Court has only recognized a limited right to vote based on the Equal Protection Clause of the Constitution. (13) The argument for statehood is then revisited in light of these voting rights issues. I. PUERTO RICO'S STATUS IN THE UNITED STATES A discussion of Puerto Rico's status within the United States is necessary before discussing the constitutional rights of the citizens who live on the island. Specifically, the constitutional distinctions between Puerto Rico and the fifty states must be drawn out. This area of constitutional law has been largely ignored by academics, but fiercely criticized by those affected. A. The Acquisition of Puerto Rico Prior to the Spanish American War, Puerto Rico was a province of the Spanish Kingdom, governed under the Spanish Constitution of 1876. (14) As Spanish citizens, Puerto Ricans enjoyed representation in the Spanish Parliament (15) and autonomy on matters of local concern. (16) When the war ended, Puerto Rico was ceded to the United States under the Treaty of Paris of 1898. …

Maryland's smart growth initiative: the next steps

Abstract: Maryland's Smart Growth and Neighborhood Conservation Initiative, enacted in 1997, is an incentive based, rather than regulatory program Its two main objectives are to provide economic incentives for limiting development to targeted areas, and to identify and protect Maryland's rural land The paper reviews the existing program and its progress and identifies some areas that require further action, such as social equity through affordable housing programs, addressing transportation and land use planning, and developing a Smart Growth ethos

A majority-minority nation: racing the population in the twenty-first century

Abstract: INTRODUCTION The media has devoted considerable attention to recent Census projections that predict a minority-majority nation by 2060. (1) Such projections presume that racial and ethnic categories will remain stable in the twenty-first century. Historically, however, this has not been the case. The Census has racially and ethnically classified different segments of the population based on the social, economic, and political climate of the time. This article examines the forces that impact the creation of racial categories and how these forces are reflected in Census classification. This article particularly explores the instability of the Hispanic category and how Hispanics might be ordered within the white/non-white racial structure in the future. Public discourse has also questioned how a minority-majority population might impact the nation's political power structures. This article asserts increased racial populations will not alone destabilize white racial domination. Racist policies and practices will persist, preventing minorities from turning numbers into political capital, unless minorities organize to dismantle racially oppressive structures. I. 2000 DEMOGRAPHIC TRENDS AND PUBLIC/MEDIA PERCEPTIONS A. Increasing Hispanic Population and Decreasing White Population in Cities A recent New York Times editorial, "Whites in Minority in Largest Cities, The Census Shows," (2) describes some of the dramatic demographic shifts, particularly within the Hispanic Census category, that have fueled the debate on the likelihood of a minority-majority nation. The racial distribution data that has riled the nation is summarized in Table 1. (3) The media has focused considerable attention on the increases in the Latina/o population. Between 1990 and 2000, the top 100 cities gained 3.8 million new Hispanic residents--an increase of 43% over 1990 levels. (4) Hispanic populations in thirty-two cities more than doubled in size. Furthermore, several cities in the South had exceptionally high growth, including Charlotte, North Carolina at 614% and Nashville-Davidson, Tennessee at 456%. (5) At the same time, many cities lost a significant number of whites. In 1990, non-Hispanic whites accounted for 52% of residents in the 100 largest cities. In 2000, they accounted only for 44% of such residents. The top 100 cities experienced a net reduction in the non-Hispanic white population of 2.3 million people, and the five largest cities lost nearly one million white residents. (6) While in 1990, whites represented more than 50% of the population in seventy of the 100 largest cities, in 2000, whites were a majority in only fifty-two of those cities. (7) B. The Census 1. A Subjective Measurement Tool These trends have contributed to the perception that minority populations are quickly overtaking the white majority. This fear is not new. After the 1990 Census, one Oregon newspaper poll reported citizens believed that 49.9% of the U.S population was white, when it was really 74%. (8) Since the release of the 2000 demographic data, the media has reported extensively on minority growth, but the details are often lost. For example, at 69.1%, non-Hispanic whites are still a healthy majority in the U.S. The media discourse also misconstrues the nature of racial and ethnic categories in the Census. We often start from the assumption that measurement tools, like the Census, have a kind of apolitical and objective basis. For example, we assume that definable racial minority populations exist, and we debate over how to create the most objective techniques by which to measure them. When the media reports on the booming Hispanic population, it does so as if the Hispanic population has always existed. In this discourse on a minority-majority nation, our initial pre-sumptions are a primary concern. Should it be presumed that definable and distinguishable populations of color exist? …

The psychology of competence and informed consent: understanding decision-making with regard to clinical practice.

Abstract: INTRODUCTION The role of psychology and related mental health disciplines in the informed consent process has gradually evolved from an essentially non-existent role into a central and important one. The importance of informed consent as a mechanism for protecting patient autonomy cannot be overstated. Both the ethical principals of psychologists as well as countless legal decisions have emphasized the importance of patient autonomy. (1) Rooted in the constitutional right to privacy, the importance of autonomy as a guiding principal in medical decision making (as in other forms of decision making) has been well established and is essentially unchallenged. (2) I. INFORMED CONSENT As is perhaps common knowledge for many clinicians and legal scholars, the doctrine of informed consent requires three elements to be present in order to validate medical treatment decisions. (3) The decision must be knowledgeable (i.e., the treatment provider must have disclosed relevant information to the prospective patient), voluntary (i.e., a decision made of the patient's own free will), and competent (i.e., by an individual with an adequate level of decision making ability). Although psychologists have been involved in providing research and clinical expertise to virtually all aspects of the informed consent process, psychology's role is most important in determining whether the patient is competent to make a treatment decision. (4) The burden of the first element of informed consent, the "knowledge" element, rests with the treating clinicians. Specifically, the doctor must provide a reasonable amount of information regarding the known risks and benefits of a recommended treatment, as well as the risks and benefits of treatment alternatives. Not surprisingly, the volume of information necessary to make an informed decision varies depending on the nature and complexity of the decision at hand. Furthermore, different patients will certainly differ in the amount of information they desire. In general, however, a standard has emerged that is consistent with numerous other areas of the law: the "reasonable person" standard, or that amount of information that the typical person would find adequate and/or necessary to make such a decision. (5) Although psychologists have begun to use research tools to clarify the boundaries of the reasonable person standard, literature has not yet focused squarely on informed consent. (6) Instead, most mental health research has addressed the impact of disclosed information on treatment decisions or methods to improve comprehension and retention of disclosed information. (7) Voluntariness, the second element of informed consent, pertains to the patient's decision making process. Individuals must be free to make their own decisions without undue coercion from others. Although studies of the patient's perceptions of coercion and the factors that influence this perception have begun to emerge in the psychology literature, this issue remains largely outside the domain of psychology. (8) Instead, defining the contours of voluntariness occurs primarily in the courts. Even so, no clear definitions or standards have been forthcoming. (9) Competence, the final aspect of informed consent, is arguably the most important element of consent. Although only recently identified as a topic worthy of scientific scrutiny, the competence question has increasingly attracted the attention of the psychological sciences. (10) While the burden of competence falls primarily upon the decision maker, the clinician or researcher is responsible for ensuring that this requirement has been satisfied. (11) Importantly, the law presumes that every adult is competent to make decisions for themselves unless proven otherwise; for many individuals the burden of demonstrating competence may shift as a practical matter, if not a legal one. Mentally ill, mentally retarded, severely medically ill, and even healthy elderly adults share this burden, in that many individuals perceive their competence to be questionable. …

The Restatement (Third) of Torts: Products Liability: The ALI's Cure for Prescription Drug Design Liability

Abstract: "It has not been a well-kept secret. Anyone familiar with the law of products liability knows that [the Restatement (Second)] is out of date and requires revision." (1) "We conclude that [the Restatement (Third)] has no basis in the case law ... Accordingly, we do not adopt ... the Third Restatement." (2) INTRODUCTION In 1997, the American Law Institute ("ALI") adopted the Restatement (Third) of Torts: Products Liability ("Restatement (Third)"). (3) After over thirty years as the definitive, yet somewhat confusing road map along the products liability highway, the Restatement (Second) of Torts ("Restatement (Second)") was turned on its head. Before new case law involving the Restatement (Third) has been given a chance to develop, commentators have risen either to praise the Restatement (Third) as a clear guide to the chaotic products liability maze, (4) or to reject it as a pro-defense, industry-favoring curtailment of manufacturer liability. (5) Few disagree that the Restatement (Third) radically changes the nature of prescription drug design litigation. (6) Critics of the Restatement (Third) assert that the new standard sets a nearly impossibly high threshold for plaintiffs seeking to hold prescription drug manufacturers liable for defective design. (7) One court has agreed, describing the Restatement (Third) as setting a "[s]tandard that will never allow liability [for the defective design of prescription drugs]." (8) Some critics argue that the Restatement (Third) effects sweeping changes to prescription drug design litigation, and "comes very close to eliminating design defect claims altogether." (9) Other commentators argue that the Restatement (Third) is not a true "restatement" of the law at all, but rather a complete revision. (10) The Restatement (Third)'s reporters respond that these changes are not only justified, but necessary. (11) The failure of the Restatement (Second) in bringing about judicial uniformity has led courts to carve out their own respective "niches" in the law. (12) Due to evolving notions of strict liability and its application to prescription drug manufacturers, the analytical framework provided by the Restatement (Second) is hopelessly out of date. (13) According to the reporters, "Anyone familiar with the law of products liability knows that [the Restatement (Second)] requires revision." (14) Historically, safer alternative drug designs have often been unavailable. As a result, most prescription drug litigation has involved failure to warn and manufacturing defect claims, as opposed to claims that drugs have been defectively designed. (15) In the past two decades, however, courts have begun to take cognizance of design defect claims involving prescription drugs. (16) As courts are increasingly confronted with claims of defectively designed prescription drugs, they may look to the ALI for guidance on how to proceed. (17) Courts and commentators have long debated the proper judicial treatment of defective design claims involving prescription drugs. Some commentators have argued that prescription drugs, as a product category, are fundamentally different from other consumer products. (18) A number of courts have agreed, citing a public policy supporting the research and development of new prescription drugs, and have sought to limit prescription drug manufacturer liability for defective design. (19) Other courts have refused to create a bright-line distinction between all prescription drugs and other consumer products. (20) According to its reporters, the Restatement (Third) clarifies murky judicial doctrine and reconciles these competing viewpoints. (21) Whether the ALI properly balances the societal utility of developing new prescription drugs against the need for liability for defective drug designs has been hotly debated. Part I of this Note will trace the history and evolution of strict liability for defectively designed prescription drugs. …

Problem-Solving Courts: Keynote Address

Abstract: Thursday, February 28, 2002 For me, coming to the Fordham Law School always is a treat. I've spent many hours researching in your wonderful library, and I've attended a zillion great functions here. Until today, my favorite visit took place one Election Day when I popped in to see my friend the Dean, and his assistant asked: "Are you a student here?" Today's visit, however, takes the cake--it's the best. Imagine: two whole days dedicated to "Problem-Solving Courts: From Adversarial Litigation to Innovative Jurisprudence," from birth through adolescence, to a long and productive life. And if it weren't treat enough just to be here at Fordham again, and to be part of this important symposium, I have a note saying, "You don't have to speak for a whole half-hour. We're just pleased to have you with us." What a terrific welcome! So, recognizing that you all have been at this since 8:30 this morning, and have another very full day tomorrow beginning at 8:30, I will try to be brief. That, I know, is one of humanity's most failed aspirations. I notice in a letter outlining guidelines for submissions to the Fordham Urban Law Journal, that the Journal does not publish "public relations type material, opinion essays, or articles summarizing information readily available elsewhere." What I have to say this afternoon happens to fall into all three categories. In my opinion, problem-solving courts are by far the most exciting, most promising recent development in the law. And that public relations-type opinion is amply buttressed by information readily available elsewhere. Of all the phenomenal people, and categories, you have on your program--judges and professors and Bar leaders to name a few--I see that I am the only person in the Chief Judge category, so I would like to speak from that perspective. It's good--very, very good--to speak from the Chief Judge perspective. I may be the only person on the program in the Chief Judge category, but I am not alone among Chief Judges in the view I hold about problem-solving courts. At its Summer 2000 meeting, the nationwide Conference of Chief Justices unanimously endorsed the concept of problem-solving courts, and resolved to encourage the broad integration of the principles and methods used in those courts into the administration of justice, in order "to improve court processes and outcomes while preserving the rule of law, enhancing judicial effectiveness, and meeting the needs and expectations of litigants, victims and community." The Conference of State Court Administrators and the American Bar Association each adopted a similar resolution. With Chief Judges, State Court Administrators and the American Bar Association all endorsing and encouraging the development of problem-solving courts, the subject is surely an important one for law schools and law students--the next generation of practicing lawyers, law professors, bar leaders and judges. Why is this innovation so appealing to judges at the helm of our nation's State courts? The State courts, as you no doubt know, handle more than ninety-five percent of the country's litigation--tens of millions of cases each year. In New York alone, our State courts handle well over three million cases annually, more than a million of them in our criminal courts, more than 700,000 in our family courts. And numbers like those are not unique to New York. A Chief Judge could not help but wonder, faced with such numbers, whether we are managing our enormous dockets most effectively. Always we ask ourselves, how can we do better? Seeing the huge number of criminal and family cases, it would also have to strike a Chief Judge that we are very likely simply recycling some of the same people through those courts. Surely not one in every eighteen New Yorkers is in our criminal courts each year. In deed we know that we see some of the same people--drug addicts, for example--coming through the courts again and again and again, committing non-violent crimes to feed and support a habit. …

City Life and New Urbanism

Abstract: I. URBANISM AND CIVILITY Imagine places of civility in which people with nothing in common share the public realm. That's urbanism. As described by Richard Sennet in The Uses of Disorder, these places enable us to come into contact with "others"--people different from ourselves. And this contact, however brief, has the capacity to change us, teach us new things about ourselves, and enable us to grow as human beings. Urbanity is inherently associated with courtesy, refinement, polish, civilities, courtesies, and amenities. But urbanity is a quality many American cities lost in the second half of the twentieth century. Yet we still yearn for urban places where we have the opportunity for chance encounters that spark new ideas and opportunities: on the walk to school or as we ride a bus to the other side of the city. In urban neighborhoods, we can sit by our window and participate in the life of the city. In her waning years, when she was mostly housebound with crippling arthritis, Colette's view from her apartment window overlooking the garden of the Palais Royal in Paris frequently stimulated her final memoirs The Blue Lantern and The Evening Star: Recollections. These books are filled with reminiscences of her life and the life of the street she could observe from that window on the world. The American front porch is another example of urbanism - indeed, one of the richest - with its close relationship between the private world of the house and the larger public realm. James Agee described this relationship: It has become that time of evening when people sit on their porches, rocking gently and talking gently and watching the street and standing up into their sphere of possession of trees, of birds' hung havens, hangars. People go by; things go by. A horse, drawing a buggy, breaking his hollow iron music on the asphalt; a loud auto; a quite auto; people in pairs, not in a hurry, scuffling.... (1) Then there are the great, large-scale civic spaces that bring people together: Rockefeller Center, Times Square, Fifth Avenue, the Champs Elysees, the Piazza San Marco. These remain fixed in the memories of millions of people as important places in their lives, even if visited only once. Such places become a shared focus of many people's lives; they are places in which many of us are at ease with ourselves and with each other. The most effective urban spaces, the ones that make us feel the most comfortable, have an almost room-like quality. They are "whole" places. The street does not merely carry large volumes of traffic. Rather, the street harmonizes with the facades of the buildings along it. Rather than shout for attention as individual objects, the buildings work with one another to create a unified whole. There are people and activities in the space and the presence of windows, doorways, balconies, and porches provides places for people to observe and create a safe and secure public space. Paris provides one excellent model of urbanism in which the cross section is the key. Taken from a perch in a balloon, an aerial photograph of Paris in the nineteenth century clearly shows the boulevards under construction and the cross section. This system was applied broadly across the city. A substantial part of the city's greatness derives from the fact that the upper floors of the buildings in all districts are residential and that each structure has a mixed-income population. Before elevators, the most expensive apartments were one or two stories above ground. They had the highest ceilings and the most elaborate ornamentation. The next floors, with more steps to climb and slightly lower ceilings, housed the middle class. On the top were the garrets for storage and servants. With the introduction of elevators, the hierarchy became altered, but a wide mix still existed in each building. …

The Agony of Ecstasy: Reconsidering the Punitive Approach to United States Drug Policy

Abstract: INTRODUCTION People think they can stop the drug traffic by putting people in jail and by having terribly long sentences But, of course, it doesn't do any good (1) --Judge Whitman Knapp In the past few years, legislators and judges have become more vocal in their opposition to the "war on drugs" (2) in the United States (3) However, challenging punitive drug laws is politically difficult; the challenger risks being perceived by the public as someone "weak on crime" who "condones drug use" (4) Tom Campbell, a congressman from California, commented on this phenomenon: "The most common reaction I get from my colleagues is `You're absolutely right, but, boy, I'm not going to take that risk'" (5) While the public is decreasingly supportive of punitive laws, (6) many still cling to the belief that such laws will reduce drug use because of fear--fear that drug use among children will increase and that less stringent drug laws will lead to moral decline and empower minority groups (7) United States drug laws implicate complex matters such as race, (8) gender, (9) class, the national budget, (10) prison overcrowding, (11) civil liberties, (12) and the spread of diseases such as HIV/AIDS and hepatitis (13) In fact, efforts to reduce drug use may cause more harm than the drugs themselves (14) For example, increased funding for enforcement of criminal drug laws couple with escalating criminal sentences has led to a rise in drug related convictions and a significant need for prison beds; the war on drugs has created and supported a prison-industrial complex that costs taxpayers over $24 billion per year (15) Enforcement is often directed at racial minorities and lower class communities; civil liberties are sacrificed in cases of racial profiling, illegal searches, and excessive wiretapping (16) The direct financial cost of the war on drugs is in the billions, with most of the national budget allocated for enforcement (17) The additional indirect costs are unknown Yet needle exchange programs aimed at reducing harm by slowing the spread of HIV/ AIDS (18) go without funding and often without legal authority to operate (19) These are merely a few examples of the collateral consequences of the drug war An objective cost/benefit analysis of the current drug policy is difficult to ascertain In 1999, Americans spent an estimated $632 billion on illicit drugs (20) Most of that spending was by hard-core addicts, (21) a group that makes up less than one-quarter of the drug users in this country, but consumes over two-thirds of the illegal drugs (22) Given that drugs are less expensive and more widely available than ever before, (23) and that punitive drug laws have increasingly negative social consequences, (24) finding advantages of the current approach is a challenge One commentator believes the important question about any drug control program is whether it "contribute[s] materially to the reduction of drug use and drug-related harms" (25) Whether there is a "material" difference depends on whether "the effect is sizeable and, in particular, whether it is sizeable compared to the costs" (26) Examining the effects of United States drug policy under this rubric may prove frustrating For example, more drug convictions could mean a reduction in the number of drug dealers and addicts, but could also mean that more people are using and selling drugs Fewer drug-related emergency room visits could mean that fewer people are getting sick from using drugs It could also indicate that fewer people are seeking treatment for drug-related illnesses Less marijuana use among teenagers than in the past could mean that they are using fewer drugs in general, or it could simply mean they are using more of other drugs Even if the number of drug users were known, that knowledge might not prove an effective measure of the success of drug policy …

Lifting Voices: Towards Equal Education for Pregnant and Parenting Students in New York City

Abstract: We all love to learn, but we feel disrespected. (1) PROLOGUE East 128th Street in Harlem, New York City, is empty, but for a middle-aged man walking along the sidewalk. Outside of the old school building, there is no sign, no central entrance--there is only a ramp leading to a side door of dull gray metal. The man on the sidewalk calls out, "What are you looking for? Looking for the school for pregnant girls?" Hands clasped, he draws an exaggerated circle in front of his middle, and then points to the gray door. In faded paint, small stenciled letters read, "P-911--School for Continued Education." Inside, hallways are papered in children's finger paintings and student election campaign flyers. In breaks between classes, students stop by a nursery filled with toys and books to visit their babies. Here there are no advanced placement classes and there is no school band, yet for the students, all of whom are either expectant or new mothers, this "pregnancy school" is the only way to continue their educations. Some students chose to come to P-911 because it offers them basic academic instruction and social services in a small, nurturing environment. (2) Others, after being compelled to leave their mainstream schools, had to choose between coming to P-911 or dropping out of school completely. (3) And then, there is Emily, (4) who was forced to leave her mainstream school, but refuses to accept the alternative that P-911 offers. For Emily, that man on the sidewalk is one of the reasons she refuses to attend P-911. She is embarrassed by the thought that once she walks up that ramp and through that grey door, her pregnancy is all other people will see. She does not want to be labeled by her pregnancy--there is so much more to her than that. But how can she express and explore all the other facets of her identity when, to that man and everyone else who sees her at P-911, she is just another "pregnant girl"? The other reason why Emily refuses to attend P-911 is because she wants to be challenged to learn and grow academically. Her goal is to continue progressing toward the high school diploma she was striving for before she became pregnant. But all of the courses offered at P-911 are in basic subjects that she has already completed. Because no regular school will admit her, and she will not enroll in a pregnancy school, Emily is left out of school completely. Deprived of her education, Emily worries that she is losing her hopes of a happy future, for herself and for her child. INTRODUCTION Throughout New York City there are many girls, like Emily, who are denied access to public education because they are pregnant or have children. (5) Pregnant and parenting students are routinely subjected to hostile and punitive treatment in mainstream public schools, (6) resulting in their educational disenfranchisement. (7) In a recent survey of pregnant and parenting teenagers in the New York City foster care system, forty percent stated that they dropped out of school while pregnant, (8) and twenty-two percent stated that they were "forced to change schools" due to their pregnancies. (9) This discrimination against pregnant and parenting students persists despite the legal protection provided by Title IX of the Education Amendments, enacted by Congress in 1972, ("Title IX") which guarantees educational equality for all students, regardless of pregnancy or parental status. (10) Decades of empirical evidence demonstrating the critical link between educational attainment and positive outcomes for teenage mothers and their children have also failed to compel mainstream schools to accommodate pregnant and parenting students. (11) Instead, pregnant and parenting students are either driven out of the education system entirely, (12) or pushed into separate pregnancy school programs. (13) P-911 is one of New York City's five pregnancy schools, (14) or "P-Schools," (15) dedicated exclusively to serving pregnant and parenting students. …

Catholic teaching and the law concerning the new reproductive technologies.

Abstract: INTRODUCTION The Roman Catholic Church has had much to say on the vast topic of New Reproductive Technologies ("NRTs"). According to some leading voices in the field, the Church's teachings lie outside the pace of development and acceptance of many of the new technological means for satisfying couples' and individuals' desires for children. Still, the Church is able to command attention for various reasons. In part, it is because of its visibility and global size, but it is also because some of the Church's ideas have secular counterparts; many observers have expressed concerns that mirror some of those proposed by the Church, even those writing from no particular religious viewpoint. This Article will set forth the fundamental teachings from which the Roman Catholic Church derives its positions on the NRTs. It will further demonstrate the application of these teachings to some of the specific medical techniques commonly used in the course of NRTs. The Church's legislative recommendations will then be summarized. For the most part, these recommendations have not found their way into law or practice. Still, it will be explained that many of the Church's most deeply-rooted concerns about both the processes and effects of NRTs are echoed by legal scholars and others who ground these concerns not in Catholic, but in "human" terms. At the same time, these secular voices often come to different conclusions than those reached by the Church. This Article will explain how these diverging views develop from fundamental differences in starting points. They flow also from perceptions about the Church's "agenda" in proposing legislation concerning NRTs. I. ROMAN CATHOLIC CHURCH TEACHING ON MATTERS PERTAINING TO NRTS A. The Nature of the Human Person In a general sense, Catholic teaching about NRTs is an excellent example of Catholic moral reasoning. Such reasoning often begins with an is and proceeds to one or more oughts. (1) In the case of NRTs, the Church begins by exploring the implications of the is of the human person, and the is of the nature of human sexual intercourse, to reveal the oughts regarding proposed methods of human procreation. The Church has established a baseline to enable us begin this analysis: The fundamental values connected with the techniques of artificial human procreation are two: the life of the human being called into existence and the specific nature of the transmission of human life in marriage. The moral judgment on such methods of artificial procreation must therefore be formulated in reference to these values. (2) The Church has repeatedly defended its expertise in defining the nature of the human person. Perhaps the most well-known occasion was during the speech of Pope Paul VI to the United Nations in 1965, wherein he called the Church an "expert in humanity," at the service of life and love. (3) The Church has disavowed any intention to speak scientifically, but rather, "having taken account of the data of research and technology" it puts forward the "moral teaching corresponding to the dignity of the person and to his or her integral vocation." (4) The criteria for moral judgment concerning the dignity of the human person are threefold: 1) respect for the human person; 2) the human being's "primary and fundamental right to life"; and 3) the transcendent aspects of the human person including a human soul and humanity's destiny in communion with God. (5) A deeper look at these starting points reveals important implications for some of the technological imperatives of NRTs as they are practiced today. The Church teaches that one ought to respect the human person because she has been created by God, and made in the very image and likeness of God. (6) Furthermore, humans are made by God not out of need, but out of love. We are the only creature on Earth whom God has "wished for himself," (7) and this places us in a special relationship with God. …