Posts from the ‘Student Articles’ Category

Strengthening Clinical Ethics Committees: An Examination of the Jurisprudence and a Call for Reform

Posted 1168 days ago by HLPRonline editorial staff

by CARMEL SHACHAR

Increasingly, ethics conflicts in hospitals are adjudicated not through the judicial system but through hospital ethics committees. Ethics committees resolve disagreements over treatment plans, interpretations of do not resuscitate orders, and other medical issues, providing critical guidance to health care practitioners. The case law in some states, such as New Jersey, suggests that the recommendations of ethics committees ought to be binding on courts. In other states, such as Massachusetts and Florida, courts have ruled that ethics committee recommendations should be persuasive in court proceedings but not determinative. But even in these states, ethics committees can have great influence over right to die and other medical decisions.

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Towards a Better State: Fostering Dialogue Between the Supreme Court and the Public Through a Public Comment Period

Posted 1512 days ago by HLPRonline editorial staff

BY EVA DUGOFF

Since Marbury v. Madison in 1803, the case that “invented” judicial review, the Supreme Court has exercised this power sparingly; that is, until recently. In the 1860s the Supreme Court, exercising its power of judicial review, struck down four laws, seven in the 1870s, four in the 1880s, and five in the 1890s. Between 1990 and 2000, the Court struck down thirty laws.

In 1962, Professor Alexander Bickel criticized judicial review most famously for its counter-majoritarian difficulty, but also because he argued it leads to a decline in public debate. Following the lead of James Bradley Thayer and Judge Learned Hand, Bickel argued that “judicial review may, in a larger sense, have a tendency over time seriously to weaken the democratic process.” According to Bickel and Thayer, judicial review gives the legislature leave to “shed all considerations of constitutional restraint” because the courts will step in. In turn, the people will be less conscientious in who they send to Congress. The end result, according to Thayer, is that judicial review “dwarf[s] the political capability of the people, and [] deaden[s] its sense of moral responsibility.” The people lose their political capabilities because the Supreme Court, an outsider, swoops in to remedy legislative mistakes, robbing the people of the political experience of debating the issue in public and correcting their own mistakes.

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Safeguarding National Environmental Regulation in a Liberalized World: Beyond the Trade Promotion Act of 2002

Posted 1602 days ago by HLPRonline editorial staff

BY NEIL GORMLEY

Is free trade irreconcilable with sustainable development? Some environmental groups, viewing the regime of international trade and investment liberalization as an obstacle to effective environmental protection, suggest so. While many have criticized specific rules that are seen to impinge the freedom of national governments to regulate environmentally harmful practices, other theorists have gone further to examine structural factors that undermine national regulatory efforts.2 The insight that international trade and investment may undermine national efforts to regulate private enterprise for the public good is not a new one. No less an economic thinker than Adam Smith recognized that international capital, in the presence of free trade, breaks free of the norms of national community. In order for the public good to be asserted under those circumstances, national norms must find expression in the rules that govern trade, making it less than entirely free, or else in some other embodiment of international governance.

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