Supreme Court Decisions

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section considers and rejects standard practical arguments in favor of abolishing the insanity defense.

This article analyzes judicial determinations on the "right to die" from Quinlan to Cruzan, Glucksberg, and Vacco. The body of law known as right-to-die cases extends ordinary treatment refusal doctrine to end-of-life decisions. The courts, having affirmed a right to refuse life-sustaining treatment, held that certain categorical distinctions that had been drawn lacked a rational basis. No rational distinction could be made between competent vs incompetent patients, withholding vs withdrawing treatment, and ordinary vs extraordinary treatment. The courts, however, had persistently affirmed one categorical distinction: between withdrawing life-sustaining treament on the one hand and active euthanasia or physician-assisted dying on the other. In Washington v Glucksberg and Vacco v Quill, the Supreme Court unanimously held that physician-assisted suicide is not a fundamental liberty interest protected by the Constitution. Notably, five members of the Court wrote or joined in concurring opinions that took a more liberal view. The Court powerfully approved aggressive palliation of pain. The Supreme Court, hinting that it would find state legalization of physician-assisted suicide constitutional, invited the nation to pursue an earnest debate on physician assistance in the dying process.

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA's regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries--even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps....

Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded. Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.

A century ago, the US Supreme Court in Jacobson v Massachusetts upheld the exercise of the police power to protect the public’s health. Despite intervening scientific and legal advances, public health practitioners still struggle with Jacobson’s basic tension between individual liberty and the common good. In affirming Massachusetts’ compulsory vaccination law, the Court established a floor of constitutional protections that consists of 4 standards: necessity, reasonable means, proportionality, and harm avoidance. Under Jacobson, the courts are to support public health matters insofar as these standards are respected. If the Court today were to decide Jacobson once again, the analysis would likely differ—to account for developments in constitutional law—but the outcome would certainly reaffirm the basic power of government to safeguard the public’s health.

Nineteen states and the federal government have statutes for the civil commitment of sexually violent predators (SVP). The American Psychiatric Association has vigorously opposed SVP laws, citing the abuse of both individual civil rights and of psychiatry in forwarding preventive detention. Those who support the laws underscore that the statutes target highly dangerous sex offenders. There are two different approaches to understanding ethics-based problems and their solutions. The normative approach assumes that there is a universal, intuitive, abstract, correct answer to a given question. However, there is no universal right way to balance the important normative ethic of protecting individual rights with the equally important normative ethic of protecting public safety. A less universal approach, consequential ethics, becomes necessary when abstract normative values conflict and lead to opposing conclusions. In this commentary, we examine and attempt to resolve the conflicting pos...

Juveniles, like adults, should be afforded the right to raise an insanity defense. In this commentary on the article by Morse and Bonnie on the abolition of the insanity defense, we explain why so few juveniles across the United States are granted access to the insanity defense and the reasons that they should have that option. We also consider whether the Delling case was the best suited vehicle to argue for extending constitutional protection to the insanity defense nationwide.

Recent Supreme Court decisions emphasize the need to regulate the admissibility of expert testimony by means of standards that require opinions to go beyond ipse dixit--that is, that are based on more than the fact that the expert said it. The authors discuss subtextual themes underlying this issue and suggest approaches to attaining expert clinical opinions that reduce the likelihood of being mislabeled as ipse dixit contributions. The approach involves providing substantiation of testimony by offering a reliable methodologic basis for communicating the relevant opinion in a thoughtful and intellectually rigorous manner. A model is offered, emphasizing a process approach to opinion formulation and reformulation prior to deposition and trial. This approach addresses not only the Supreme Court's current focus on moving expert opinion beyond ipse dixit, but also such concerns as possible distortions of an expert opinion in the adversarial process. Since judicial determinations may...

The U.S. Supreme Court case of Daubert v. Merrell-Dow Pharmaceuticals focused attention on the problem of “junk science” testimony in the courtroom, a decision that led to the emergence of the Daubert hearing as a pre-trial screening device for determining the reliability and relevance of expert

The April 03, 2008 Federal Court reversal in case of the Scotch Whisky Association (of Scotland, UK) versus Glenora Distillery, striking down the right to call the Cape Breton produced whisky "Glen Breton", is a direct strike of denial by the top Court of our land with respect to the cultural heritage of our Province of Nova Scotia (New Scotland) and its Gaelic speaking region of Cape Breton Island. Justice Sean Herrington went beyond reasonableness when he argued that the ethnicity of the word "Glen" in the context of its nexus with Cape Breton Island was not relevant in drawing his decision, and that the use of the term unduly left the impression with consumers that Glen Breton was a whisky made in Scotland, which of course it's not. Amazingly, Judge Herrington of Ottawa asserted that "had the Irish, who can also lay claim to the word, marketed "glens" in Canada, the situation may well have been different." However, he said while Scotland's proudest export to this country is its people, for proud Cape Bretoners' it's too late to use the word "glen". What he doesn't see, is as Capers' know, that "the tartan is all of the one stuff."

The success of the health care system depends on the accuracy, correctness and trustworthiness of the information, and the privacy rights of individuals to control the disclosure of personal information. A national policy on health informational privacy should be guided by ethical principles that respect individual autonomy while recognizing the important collective interests in the use of health information. At present there are no adequate laws or constitutional principles to help guide a rational privacy policy. The laws are scattered and fragmented across the states. Constitutional law is highly general, without important specific safeguards. Finally, a case study is provided showing the important trade-offs that exist between public health and privacy. For a model public health law, see www.critpath.org/msphpa/privacy.

The right to represent oneself at trial is well-established, but not absolute. Recently, in Indiana v. Edwards, the United States Supreme Court considered whether states may demand a higher standard of competence for criminal defendants seeking to represent themselves at trial than that necessary for standing trial with attorney representation. Ultimately, the Court ruled that the Constitution allows states to employ a higher competency standard for pro se defendants. In this analysis of the Court's decision, the authors describe the facts of this case, the legal precedents framing the issues facing the Court, and the Court's rationale for its opinion. The ruling is considered in light of available research involving pro se defendants and whether this ruling is consistent with professional guidelines related to forensic psychiatric practice. Implications of the decision for forensic clinicians and limitations of the decision are discussed.

This article constitutes excerpts of a videotaped discussion (www.nejm.org) hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethal injection prompted by the United States Supreme Court’s January 7 oral arguments in Baze v. Rees.  Dr. Atul Gawande moderated the roundtable that included two anesthesiologists – Dr. Robert Truog and Dr. David Waisel – as well as law professor Deborah Denno.  The discussion focused on the drugs used in lethal injection executions, whether physicians should participate, potential alternatives, and some of the legal parameters of Baze.

This Article interprets the debate about abortion and the debate about embryonic research and therapeutic cloning as aspects of a larger history of ideas. The Article suggests that embryos increasingly stand for different truths in discourse about abortion on the one-hand and about embryonic stem cell research and therapeutic cloning on the other. More specifically, the Article suggests that the contemporary debate about the meaning of the embryo in the context both of abortion and of embryonic research bespeaks a widespread transformation in Western, and especially American, society during the last three or four decades. At base, that transformation involves displacement of an understanding of personhood, particularly in domestic settings that depended on the submersion of individualism with an understanding of personhood that values autonomous individuality and that envisions community as the consequence of individuals' distinct choices rather than as a pre-existing, hierarchi...