America as Pattern and Problem

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/90528/1/3527991.pd

From Consumer Choice to Consumer Welfare

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/90591/1/3527855.pd

Justification by Faith

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/90608/1/3528536.pd

Discretion, Rules, and Law: Child Custody and the UMDA\u27s Best-Interest Standard

One barrier facing any attempt to devise a uniform law for diverse jurisdictions is the occasional - perhaps even frequent - difficulty of writing rules that will accurately guide judges. The law\u27s ordinary solution to that difficulty is to give judges some measure of discretion. This article inquires into the nature and legitimacy of that technique. It does so by analyzing a particularly controversial provision of the Uniform Marriage and Divorce Act (UMDA). Section 402 of that Act states: The court shall determine custody in accordance with the best interest of the child. It then instructs the court to consider all relevant factors, including the parents\u27 wishes, the child\u27s wishes, the child\u27s relationships with the significant people in his life, the child\u27s adjustment to his home, school, and community, and the mental and physical health of all individuals involved

A Government of Limited Powers

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/90553/1/hcr.2005.0047.pd

Rights Discourse and Neonatal Euthanasia

Hard cases, they say, make bad law. But hard cases, we know, can also make revealing law. Hard cases identify for us problems we have not solved. They reveal how our goals conflict. They force us to articulate the assumptions implicit in our approach to a problem, and to identify and evaluate the ways of talking and reasoning the law has gradually come to use. If there was ever a hard case for the law, it is the problem whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally and severely damaged physically to die. For many years, the law has not had to confront that hard case. Recently, however, the issue has evoked intense public and legal concern. The Department of Health and Human Services has, after receiving more than 115,000 comments on a proposed rule, issued final regulations requiring states to be ready to respond to reports of newly born infants being denied medical treatment, and the Supreme Court has agreed to hear a case arising out of a predecessor to those regulations.1 Legal battles over several Baby Does have dramatized the issue

Hard Cases and the Politics of Righteousness

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/90570/1/hcr.2005.0068.pd

Rethinking Alimony: Marital Decisions and Moral Discourse

The riddle of alimony is why one former spouse should have to support the other when no-fault divorce seems to establish the principle that marriage need not be for life and when governmental regulation of intimate relationships is conventionally condemned. Perhaps the most intelligent and probing recent attempt to solve that riddle is Ira Ellman\u27s The Theory of Alimony. In this article, I have two purposes. The first is to ask some questions about Professor Ellman\u27s admirable inquiry into this intricate and intractable problem. These questions are not intended to disprove the theory. Professor Ellman has, at the least, identified a number of ideas which should influence our thinking about alimony, and he has shown why a number of others probably should not. As he notes, in trying to solve the alimony riddle he has taken on a large project, a project which The Theory of Alimony only begins. I would like to contribute to that project by showing where the theory\u27s rationale for alimony falters and by proposing profitable directions for the inquiry Professor Ellman has so incisively begun. More generally, I hope my investigation will identify some of the core difficulties any theory of alimony must confront. My second purpose in writing this article arises from the fact that perhaps solipsistically, I interpret Professor Ellman\u27s project in light of an observation of my own. A few years ago, I argued that American family law has experienced a diminution of the law\u27s discourse in moral terms about the relations between family members, and the transfer of many moral decisions from the law to the people the law once regulated. Professor Ellman\u27s enterprise speaks to this hypothesis in two ways. First, it centrally considers how far courts must undertake moral discourse in order to apply the currently popular approaches to alimony. Second, it attempts to develop a theory of alimony which is justifiable in other than moral terms and which tries to relieve courts of the burden of moral discourse in deciding whether to award alimony. In my earlier article, I reached no conclusion about the ultimate practicality, much less the ultimate desirability, of the trend away from moral discourse. While I cannot fully answer those two questions here, Professor Ellman\u27s inquiry is an intriguing test case. The second half of this article thus explores in some detail the role of moral thinking in the law of alimony. During that exploration, I will express doubts about the success of any attempt to base a theory of alimony on morally neutral terms and of any attempt to bar courts from considering the moral relations of the parties in awarding alimony

The Life of the Sick Person

In The Practice of Autonomy: Patients, Doctors, and Medical Decisions (Oxford University Press, 1998), Professor Carl E. Schneider, \u2779, examines the Iaw of bioethics by looking at the lives of patients. He argues that bioethics has reached a point of paradox : Bioethicist increasingly seem to think patients have a duty to make their own medical decisions, but it is increasingly clear that many patients do not want to do so. The following excerpt from the chapter The Reluctant Patient\u27 is part of Schneider\u27s attempt to show why patients may be reluctant to seize the gift of autonomy that the law of bioethics seeks to offer them. This edited excerpt is printed with permission To appreciate the force of the second reason patients might reject the leading role in their m medical decisions, we should recall the syllogism that lies silent at the heart of the autonomist paradigm: People want to make all decisions that shape their lives. Few decisions matter more than medicines life-or-death. sickness-or-health, fit-or-frail choices. Therefore patients want to make their own medical decisions. This syllogism is flawed because some patients conclude they will reach wiser decisions by deferring to the experience and judgment of someone else. But the syllogism errs in other ways, ways suggested by what Talcott Parsons called the \u27sick role, with how people feel when they are ill. The autonomy paradigm rests on assumptions about the natural desire of all people to control themselves and their surroundings. These assumptions are overstated even for the population at large. But sick people differ from health people, for they often feel frightened, discouraged, dull-witted, abstracted, uninterested, and weary These feelings, I will now suggest, may inhibit them from making medical decisions

Gang Aft Agley

In my last contribution to this column (HCR, July-August 2000), I argued that the law of bioethics has repeatedly failed to achieve the hopes cherished for it. I presented evidence, for example, that most doctors breach the duty of informed consent, that advance directives do not direct patients\u27 care, and that repeated legal attempts to increase organ donation have failed to find the success predicted for them. I closed that column by promising to try to explain this chastening experience. It would, of course, take a lifetime of columns to capture all the reasons the law of bioethics has so often disappointed. Here I want to discuss only one, albeit a crucial one: Legal regulation of human behavior is insistently difficult because human behavior and social institutions are bafflingly complex. It is maddeningly hard to mold that behavior and those institutions because they are shaped by many potent forces besides the law and because lawmakers so often cannot accurately identifY all those forces and devise reliable methods of altering enough of them in sufficiently precise and predictable ways to achieve the result intended. It is even hard for law to rule in its own house-for example, to shape litigation in useful ways. The law of bioethics illustrates both the general problem (influencing social behavior) and its particular instantiation (influencing legal institutions). Let me once again adduce empirical evidence to show how