Beyond Misguided Paternalism: Resuscitating the Right to Refuse Medical Treatment

The author focuses on the failure of the courts to provide a remedy for the right to refuse medical treatment. Health care providers, for a number of reasons, often ignore patient requests to forgo certain life-extending medical procedures. The courts have generally allowed medical professionals complete discretion in deciding whether to honor patients\u27 requests. When patientsor their estates sue health care providers for violation of the right to refuse treatment, courts have refused to award damages. By failing to provide a remedy, the courts effectively make the right a meaningless one. While acknowledging the importance of physician autonomy, the author argues that the courts\u27 one-sided approach to this dilemma is unsound. To implementthe right, the author advocates and describes a new approach under which courts would consider not only the special context in which this issue generally arises but also the important autonomy interests inherent in the right to refuse medical treatment

Physician Restrictive Covenants: The Neglect of the Incompetent Patients\u27 Interests

The article examines how courts in different jurisdictions have addressed restrictive employment covenants for physicians and proposes a new approach drawn from the third-party beneficiary analysis in contract law. Physicians hired into existing practices often must sign substantial non-compete agreements. In evaluating the enforceability of any restrictive covenant, courts consider, among other factors, the agreement\u27s effect on the public. Surprisingly, the vast majority of jurisdictions treat the public interest analysis vis-a-vis physician restrictive covenants no differently than any other commercial restrictive covenant; this approach neglects the impact that such agreements can have on a physician\u27s existing patients. Although at first glance physician restrictive covenants may seem like a somewhat insular area of the law, it is an area that is reflective of some of the primary forces acting on the perceived health care crisis in this country - the often contradictory pressures of serving patients and running a profitable business. This article suggests courts should consider a physician\u27s incumbent patients as quasi third-party beneficiaries to the physician\u27s employment agreement when deciding whether to enforce the physician restrictive covenant. This more nuanced approach will allow courts a finer balance of the business interests of physicians against the often weighty public interest in protecting physicians\u27 relationships with their patients

Anonymous Bloggers and Defamation: Balancing Interests on the Internet

As more and more people create personal websites and blogs, courts are more frequently asked to rule on questions related to the Internet boom. Specifically, an issue has arisen concerning what standard to apply in defamation suits brought against anonymous bloggers. Courts have wrestled with producing an appropriate standard for revealing the identity of an anonymous blogger who posts allegedly defamatory material on a message board or website. This paper addresses the issue of the proper standard to be applied to revealing the identity of the anonymous blogger who faces allegations of defamation

The Interaction of the ADA, the FMLA, and Workers\u27 Compensation: Why Can\u27t We Be Friends?

This Article addresses some of the issues that arise when an employee injured at work qualifies for leave under the ADA, the FMLA and workers\u27 compensation statutes. Part II of the Article provides a brief overview of thesethree statutory schemes, focusing on the provisions, which define employee and employer qualification and the rights and responsibilities surrounding leave due to a work-related injury. Part III examines how the courts have resolved some of the overlapping and conflicting provisions contained in these statutes. This section particularly focuses on how the courts address employer obligations under all three statutes when an employee requests leave from work, as well as when an employee returns to work and requests a modified work schedule. Finally, this Article provides an overview of some of the potential solutions that a variety of commentators have suggested to help clarify the conflicting duties and responsibilities of employers and employees under the ADA, FMLA and the Workers\u27 Compensation statutes

The Interaction of the ADA, the FMLA, and Workers\u27 Compensation: Why Can\u27t We Be Friends?

This Article addresses some of the issues that arise when an employee injured at work qualifies for leave under the ADA, the FMLA and workers\u27 compensation statutes. Part II of the Article provides a brief overview of thesethree statutory schemes, focusing on the provisions, which define employee and employer qualification and the rights and responsibilities surrounding leave due to a work-related injury. Part III examines how the courts have resolved some of the overlapping and conflicting provisions contained in these statutes. This section particularly focuses on how the courts address employer obligations under all three statutes when an employee requests leave from work, as well as when an employee returns to work and requests a modified work schedule. Finally, this Article provides an overview of some of the potential solutions that a variety of commentators have suggested to help clarify the conflicting duties and responsibilities of employers and employees under the ADA, FMLA and the Workers\u27 Compensation statutes

Mental Health Courts and Title II of the ADA: Accessibility to State Court Systems for Individuals with Mental Disabilities and the Need for Diversion

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better serve the purposes of Title II and, more importantly, the needs of individuals with serious mental disabilities. This paper gives a more detailed account of the background and history of the disability antidiscrimination legislation, takes a closer look at the Supreme Court\u27s decision in Tennessee v. Lane, and discusses the historical context giving rise to the creation of mental health courts. Next, this paper explores the challenges and criticisms faced by these specialty courts, evaluates mental health courts under two integral concepts of Title II, accessibility and integration, and concludes that mental health courts may withstand scrutiny under Title II

Anonymous Bloggers and Defamation: Balancing Interests on the Internet

As more and more people create personal websites and blogs, courts are more frequently asked to rule on questions related to the Internet boom. Specifically, an issue has arisen concerning what standard to apply in defamation suits brought against anonymous bloggers.9 Courts have wrestled with producing an appropriate standard for revealing the identity of an anonymous blogger who posts allegedly defamatory material on a message board or website. Recently, in Doe v. Cahill, the Delaware Supreme Court created a strict standard that makes it extremely difficult for defamation victims to bring suit against anonymous bloggers. The standard created is far too sympathetic to anonymous bloggers and fails to address important issues facing victims of defamation

Whose Federalism

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court\u27s new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court\u27s revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as applied against the states

Taming Terrorists but Not Natural Born Killers

This Article will explore the possibility of shifting or sharing the liabilitystemming from criminal activities to those who provide detailed directions onhow to commit those acts, when the publication in question has no otherredeeming value. This Article concludes that in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others. Part I of this Article reviews the First Amendment and discusses the Brandenburg test and its potential application to situations involving speechadvocating socially harmful activity. Part II argues that this approach is poorlysuited for dealing with the problems inherent in such harm-promoting speech.By accommodating only considerations that arise from the imminence of theharm, and not the nature of the speech itself, the courts have not permittedindividuals to recover in tort for harm proximately caused by such speech and intended by the speaker to cause such hann. Part III suggests that therecognition of this new category of speech would pennit courts to better address the conflict between society\u27s need to protect its citizens from violence and the First Amendment value of free expression and democratic deliberation

Mental Health Courts and Title II of the ADA: Accessibility to State Court Systems for Individuals with Mental Disabilities and the Need for Diversion

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better serve the purposes of Title II and, more importantly, the needs of individuals with serious mental disabilities. This paper gives a more detailed account of the background and history of the disability antidiscrimination legislation, takes a closer look at the Supreme Court\u27s decision in Tennessee v. Lane, and discusses the historical context giving rise to the creation of mental health courts. Next, this paper explores the challenges and criticisms faced by these specialty courts, evaluates mental health courts under two integral concepts of Title II, accessibility and integration, and concludes that mental health courts may withstand scrutiny under Title II