CONSENT & PATERNALISM. “Consent” is a recurring theme in much of my work. This theme is manifested in two distinct ways. First, starting with a presumption against interference, I explore the conditions under which individual liberty can be justifiably restricted. For example, I address this issue both in my article on smoking regulations in the University of Pittsburgh Law Review, and in more recent articles in the Connecticut Law Review, Georgia State University Law Review, the UMKC Law Review, and the Oklahoma City University Law Review. As coercive measures are increasingly proposed and implemented to combat the behaviorally-based epidemics of today and tomorrow, the legitimacy of hard paternalistic public health laws demands further scholarly attention. I am excited to continue this line of inquiry in a book chapter for Prevention vs. Treatment: Philosophical, Empirical, and Cultural Reflectionsand in briefings on organ donation and "crisis standards of care" for the Journal of Clinical Ethics.
Second, the theme of consent is manifested in my work through my exploration of the ways in which individuals can be made sufficiently informed and educated, to obviate the need for the restriction of their liberty. For example, I address this issue in my article on informed consent and advance directives in Health Matrix. In a piece with Lindsey Anderson for the Widener Law Review, I explore the degree to which individuals should be free to voluntarily stop eating and drinking as a means to hasten death. I cover both informed consent and advance care planning in four briefings for the Journal of Clinical Ethics. I address emerging issues in shared decision making in a new chapter for Oxford University Press.
AUTONOMY & END-OF-LIFE. My more recent work also focuses on the limits of autonomy, but specifically in the end-of-life context. While many agree that there must be limits on the right of a patient to request specific medical interventions, few can agree on just where to place those limits. Consequently, few effective limits have been imposed. In my article for the Tennessee Law Review , I analyze why legislative attempts to set these limits have failed. In our article in the Ohio State Journal on Dispute Resolution, Ellen Waldman and I argue that since mediation cannot resolve all end-of-life disputes, we must further attend to the default rules which now empower patients to demand medically inappropriate care. In my article for Marquette Elder's Advisor, I debunk the popular myth that the courts are or have been hostile to health care providers' unilateral decisions to stop inappropriate treatment. Finally, in my article for the St. Louis Journal of Health Law & Policy, I demonstrate the promise and limitations of surrogate selection as a solution to intractable medical futility disputes.
PROCEDURAL FAIRNESS & END-OF-LIFE. In a group of newer articles (including some short commentaries in the New England Journal of Medicine, Chest, JAMA,American Journal of Bioethics, the Health Law Journal of the N.Y. State Bar Association, and elsewhere), I turn from substantive law to procedural law. Because no consensus has been reached on clinical guidelines for inappropriate end-of-life care, futility disputes are often relegated to resolution by pure process. But, as currently implmented, that process is not sufficiently fair. The ultimate decision maker, the intramural ethics committee, lacks the requisite independence and competence. In my "Hospital Ethics Committees as a Forum of Last Resort," I demonstrate that the Texas Advance Directives Act, which grants HECs ultimate authority, violates the procedural due process clause of the 14th Amendment. I colorfully present these same issues in the 2008 National Health Law Moot Court problem published in the Journal of Legal Medicine. I explore balancing provider and patient rights in briefings on both conscience clauses and medical futility in the Journal of Clinical Ethics. Finally, in articles for Campbell Law Review, Cardozo Journal of Conflict Resolution, and N.Y. Law School Law Review, I propose reassigning the decision making authority of intramural HECs to extramural, shared, and/or quasi-appellate HECs.
Here is a two-page PDF summary of the research and writing projects that I have planned for 2013 to 2016. Obviously, these will change somewhat as new and exciting opportunities present themselves.