Matched Preferences and Values: A New Approach to Selecting Legal Surrogates

Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by someone else. The law recognizes such decisions as the patient’s own, and accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able. Unfortunately, surrogate decisionmakers frequently make choices for patients that are inconsistent with patient wishes. Indeed, social psychology literature on surrogate decisionmaking finds a stronger correlation between surrogates’ decisions for patients and what the surrogates would want for themselves, than between the surrogates’ decisions and what the patients actually would want. Although others have treated surrogates’ tendency to project their own preferences and values on patients as a barrier to appropriate decisionmaking, this Article shows how savvy patients, advocates, and policymakers can capitalize on this tendency to improve healthcare decisionmaking. Specifically, it proposes that surrogate decisionmakers for health care be selected based, at least in part, on the extent to which they share patients’ treatment preferences. Where it is not possible to compare treatment preferences, or where an individual cares less about individual treatment decisions than about consistency with a set of values, then surrogates should be selected based on shared values. Incorporating this approach into advance planning processes and the statutory law governing the selection of guardians and default surrogate decisionmakers could simultaneously increase the likelihood that decisions made are those patients want made, and facilitate more flexible, context-appropriate treatment decisions

Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers

Surrogate decision-making arrangements are ubiquitous. Surveys suggest that the majority of older Americans have a surrogate decision maker who is empowered to make decisions on their behalf, most commonly an agent appointed under a power of attorney (“POA”) for finances or for health care.1 The result is that attorneys frequently represent clients who have a surrogate decision maker with the authority to make decisions on the matter underlying the representation. From the perspective of the attorney, such representations raise several important questions. First, from whom should the attorney take direction? Should the attorney look to the surrogate or to the person for whom the surrogate has been appointed? Second, with whom should the attorney communicate? Should the attorney share information with the surrogate, the individual who appointed the surrogate, or both? From the perspective of a court, such representations also raise important questions. If an attorney claims to represent a principal for whom a surrogate has been appointed, should the court expect the attorney to take direction from the principal and communicate with the principal? If the attorney is not doing so, should the court treat the principal as an unrepresented party? In addition, if the attorney is not doing so, should the attorney’s behavior be seen as a red flag suggesting exploitation

Cambridge Law School for Women: The Evolution and Legacy of the Nation\u27s First Graduate Law School Exclusively for Women

Although several scholars have briefly discussed CLSW in conjunction with work on other subjects, this Article presents the first comprehensive history of the school. The Article begins in Section Two by exploring how and why CLSW came into being in 1915 after two young Radcliffe suffragists led an unsuccessful campaign for admission to Harvard Law School. Section Three examines the design, pedagogical foundations, and day-to-day workings of the school during its first two years. Sections Four and Five explore the historical events that led to CLSW\u27s closure in 1917. These sections also document and discuss the school\u27s subsequent, and previously undocumented, reopening in 1921. In Section Six, the Article traces the careers of eight of the students who attended CLSW. Finally, it concludes with a discussion of the school\u27s legacy and what its history reveals about American legal education in the early part of the twentieth century. In doing so, it debunks the gender-influenced myths that have arisen about the school. Throughout, the Article explores how the idea and desire for CLSW grew out of the women\u27s suffrage movement and its accompanying emphasis on professional roles for women, while the school\u27s form was largely dictated by the increasing emphasis on the elite model of legal education championed by Harvard Law School

Cambridge Law School for Women: The Evolution and Legacy of the Nation\u27s First Graduate Law School Exclusively for Women

Although several scholars have briefly discussed CLSW in conjunction with work on other subjects, this Article presents the first comprehensive history of the school. The Article begins in Section Two by exploring how and why CLSW came into being in 1915 after two young Radcliffe suffragists led an unsuccessful campaign for admission to Harvard Law School. Section Three examines the design, pedagogical foundations, and day-to-day workings of the school during its first two years. Sections Four and Five explore the historical events that led to CLSW\u27s closure in 1917. These sections also document and discuss the school\u27s subsequent, and previously undocumented, reopening in 1921. In Section Six, the Article traces the careers of eight of the students who attended CLSW. Finally, it concludes with a discussion of the school\u27s legacy and what its history reveals about American legal education in the early part of the twentieth century. In doing so, it debunks the gender-influenced myths that have arisen about the school. Throughout, the Article explores how the idea and desire for CLSW grew out of the women\u27s suffrage movement and its accompanying emphasis on professional roles for women, while the school\u27s form was largely dictated by the increasing emphasis on the elite model of legal education championed by Harvard Law School

Outliving Civil Rights

All fifty states have adopted statutes designed to protect older adults from abuse and neglect. While those statutes have been critiqued on functional and moral grounds, their legal implications have largely been ignored. In this Article, I fill that conspicuous gap and, in the process, show how elder protection systems significantly burden the constitutional rights of older adults — including the right to informational privacy, the right to engage in consensual sexual relations, and the right to enjoy equal protection of the law. I demonstrate that a subset of these burdens may be so unreasonable that the statutes are not only unwise, but also unconstitutional. I then explore how recognizing the burdens that current elder protection systems impose on older adults\u27 civil rights could lead to a fundamental shift in the design of elder protection legislation

Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship

A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed—as research suggests is not infrequently the case—the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but have been stripped of the capacity to contract. As a result, those who wish to challenge the terms and conditions of their guardianship, or even merely to exercise unrelated retained rights, can be stymied because attorneys are unwilling to accept representation for fear that it is unlawful or unethical. Drawing on constitutional law, as well as the law of agency and contract, this Article shows why such representations are, contrary to the assumptions of many attorneys, not merely legally permissible but essential to protect fundamental constitutional rights. It then explores the professional rules governing attorney conduct in order to show how attorneys may ethically represent persons subject to guardianship. Finally, it proposes a modest change to the Model Rules of Professional Conduct to clarify attorneys’ duties in this context