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

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

Moral Discourse and the Transformation of American Family Law

Family law has undergone momentous change in recent decades. In this Article, Professor Schneider proposes that the transformation in family law can be understood as a diminution in the law\u27s discourse in moral terms about the relations between family members and as a transfer of moral decisions from the law to the people the law once regulated. Professor Schneider identifies countertrends and limits to the changes he describes, and then investigates the reasons for the changes. He hypothesizes that four forces helped change family law and moral discourse within family law: the legal tradition of noninterference in family affairs; the ideology of liberal individualism; American society\u27s changing moral belief; and the rise of psychologic man, which is a shorthand way of describing a host of changes in the way law and society view humans and human relationships. Using Roe v. Wade as a case study, he explores the consequences of these four forces for family law. Finally, Professor Schneider suggests fruitful avenues through which the changes could be further investigated

Teaching Lawyers: American practice and Japanese Possibilities

Prospective lawyers need to learn three things: First, legal doctrine, or what the law says; second, legal analysis, or how to reason about a legal issue; and third, legal practice, or how to apply legal doctrine and legal reasoning to the lawyers\u27 tasks of advising clients, drafting legal documents, representing clients before tribunals and governmental agencies, negotiating for clients, and so on. The following essay is based on talks delivered in Tokyo las February as part of the symposium Inside the American Law School: Its Essence, Its Reality, and Its Potential in Japan. Organized by Assistant Professor Mark D. West, who directs the Law Schools Japanese Legal Studies Program, in Cooperation with Japanese alumni of the Law School and Japanese bar learders, the symposium was the first of its kind. It was occasioned by Japan\u27s regorganization of its legal education system to establish graduate law schools based on the United States model by April 2004. As West explained for Law Quadrangle Notes(Spring 2002, page 4), the conference came at an important time for Japanese legal education: The basic accreditation standards for law schools were announced at the end of 2001, and the details of the system - things like costs and funding, teaching methods, curriculum, the admissions process, and so on - will be filed in over the coming months. The conference is timed to give Japanese policymakers information about our system as they debate and draft these important rules

A Comment on \u3cem\u3ePrivacy and Accountability in Black-Box Medicine\u3c/em\u3e

Human institutions and activities cannot avoid failures. Anxiety about them often provokes governments to try to prevent those failures. When that anxiety is vivid and urgent, government may do so without carefully asking whether regulation’s costs justify their benefits. Privacy and Accountability in Black Box Medicine admirably labors to bring discipline and rationality to thinking about an important development — the rise of “black-box medicine” — before it causes injuries regulation should have prevented and before it is impaired by improvident regulation. That is, Privacy and Accountability weighs the costs against the benefits of various forms of regulation across the many kinds of black-box medicine