Medical Malpractice Standard-Setting: Developing Malpractice Safe Harbors as a New Role for QIOs?

Concern about medical malpractice issues has reemerged, again stemming from escalating costs in some geographic regions and sectors of medical practice. The Bush Administration has (so far unsuccessfully) supported a cap on noneconomic loss as a strategy for coping with the cost aspects of those medical malpractice concerns, the model being the California approach. Although the overall initiative for reform has considerable merit, the damage-cap has its opponents and its drawbacks. The damage-cap approach is remedy-centric, focusing on the scope of remedy as a vehicle for containing costs in the area of medical malpractice. By concentrating on remedies, the reform of damage caps assumes that a plaintiff can establish liability, as remedial issues traditionally follow in the wake of and as a consequence of a finding of liability. In earlier work, colleagues and I have addressed the remedy issue, focusing on damages for noneconomic loss. The objective was to develop a way to improve the system for awarding damages for noneconomic loss. The approach to reform put forward in this Article looks at the medical-malpractice cost-containment issue in a different way. Like the work on noneconomic damages, it is designed to improve the functioning of the system; unlike that earlier work, however, its focus is not on the remedy-damages issues-but on the determination of liability. The systemic improvement is designed to allow for the appropriate consideration of trade-offs between quality and risk on the one hand and cost on the other

Federalism and Civil Rights: Complementary and Competing Paradigms

Until the Nixon Administration, federalism was not talked about much in the United States in the post-New Deal period and was not taken seriously as an intellectual matter. Increasingly, however, federalism has become an important domestic\u27 and a critical worldwide issue. It may not be an exaggeration to say that federalism has indeed become the pervasive legal/political issue around the world. In this Article I will make four points. First, by way of background and overview, I will conclude that the goal of federalism is and should be to encourage and facilitate geographically-based political autonomy without placing at risk the interests of minorities within those autonomous areas. Second, I will examine federalism as a civil rights paradigm. My thesis is that federalism, as a political principle and as an institutional structure, is an important form of decentralization in decision making in the cause of autonomy, democracy, and freedom. There is, therefore, an essential complementarity between the principles of federalism and traditional principles of civil rights. At the same time, there is an inherent tension between those principles. The traditional civil rights paradigm protects individual liberties by resort to universalistic principles such as equal treatment regardless of race, religion, or gender. Federalism may protect minorities based not on universalistic norms, but upon ascriptive criteria such as geography or ethnicit

The Supreme Court\u27s Jurisdiction--Reform Proposals, Discretionary Review, and Writ Dismissals

With judicial reform a matter of intense public debate, it is essential that one understand the political consequences that may result from the adoption of various reform measures. Moreover, it is important to recognize that an evaluation of any proposed change must proceed from one\u27s conception of the role of the Supreme Court in our society and one\u27s perception of the foundations of its legitimacy. Similar considerations also must shape one\u27s analysis of the rule of four and the Court\u27s practice of dismissing certiorari as improvidently granted. While discretionary review increasingly has politicized a large portion of the Court\u27s work, a political decision to grant review should be treated with the respect due an institutional determination of the Court. Before proceeding to reverse itself by dismissing certiorari, the Court should articulate reasons for its ultimate refusal to hear a case. In this way, a common law of precedent will evolve that would limit this form of dismissal; since other techniques for avoiding adjudication on the merits, such as the abstention doctrine, have an intellectual content of their own, so should writ dismissals. In deference to the principle of minority control of the screening process, however, certiorari should not be dismissed as improvidently granted if four of nine or three of seven Justices dissent

Judicial Retention Elections for State Appellate Judges: The Implications of the Ballot-Access Cases

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states\u27 requirements that judges be elected. But the limits on access to the retention-election ballot pose substantial issues under the Supreme Court\u27s ballot-access cases. The Article recognizes that merit selection has been challenged under state and federal constitutional theories but not under the ballot access cases, which may prove to be the Achilles Heal of the retention election system. Strict scrutiny applies to the total foreclosure of access to an election ballot, and the strict-scrutiny standard applies to judicial elections. Strict scrutiny requires consideration of alternatives, such as contested elections or judicial appointments. While merit-selection systems have long been challenged yet never toppled, consideration of the ballot-access cases may result in a different outcome, as judicial retention elections serve as a complete bar to the ballot for all candidates other than the candidate who seeks retention for a new term