Oregon Law Review : Vol. 87, No. 2 (2008)

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    Oregon Law Review : Vol. 87 No. 2, p.353-400 : Illusory Consent: When an Incapacitated Patient Agrees to Treatment
    (University of Oregon School of Law, 2008) Vars, Fredrick E.
    This Article will examine three hypothetical situations involving health care decision making. The issue in each will be how to make a medical decision when the patient does not refuse treatment but may lack decision-making capacity. The Article will first discuss how treatment decisions are actually being made, then examine how these decisions are supposed to be made under current law. For concreteness, the focus will be on Illinois law, but the implications will be general. Next, the Article will propose and defend a new model of decision making. The guiding principle is that treatment decisions should correspond as closely as possible to patients’ true preferences. The specific issues addressed will be: when to test capacity, how to test capacity, and what to do when capacity is lacking. To preview the conclusions: (1) existing data and new theories are marshaled in support of mandatory capacity assessment in various circumstances; (2) standardized instruments rather than physician discretion should be used to assess capacity; and (3) when capacity is lacking, the patient does not resist treatment, and there is no advance directive, a familial surrogate should make the medical decision because family predicts patient preferences better than doctors. The final Part before the Conclusion will consider possible extensions of the model to instances in which no surrogate is available or the patient refuses treatment.
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    Oregon Law Review : Vol. 87 No. 2, p.481-580 : Buying Witness Silence: Evidence-Suppressing Settlements and Lawyers’ Ethics
    (University of Oregon School of Law, 2008) Bauer, Jon
    The conventional wisdom among practitioners and legal ethics scholars has been that lawyers may ethically negotiate any settlement terms that serve their clients’ interests and are not criminal or fraudulent. (Some recent critics of settlement secrecy have argued that noncooperation settlements violate obstruction of justice statutes or other criminal laws, but the illegality argument is largely unconvincing.) This Article argues that the conventional view has looked at the problem through the wrong lens. In the ethos of the ethics codes, third party and societal interests generally take a backseat to client service, but certain types of conduct deemed especially harmful to the justice system have long been placed off-limits to lawyers because of their special role as “officers of the court.” This Article traces the history of one such duty, the principle that lawyers must not ask nonclients to refrain from voluntarily disclosing relevant information to other parties or their attorneys, and shows the important function that it plays in safeguarding the integrity of adversary adjudication. After providing a theoretical justification for liberally construing ethics rules that limit client advocacy for the sake of the adversary system’s effective functioning, this Article explores what the rules mean for settlement practices. The Conclusion addresses the critique that prohibiting lawyers from negotiating agreements that their clients could lawfully enter into on their own is either futile or paternalistic, and shows that it is neither.
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    Oregon Law Review : Vol. 87 No. 2, p.482-580 : Government Intervention in Emerging Networked Technologies
    (University of Oregon School of Law, 2008) Lillquist, Erik; Waldeck, Sarah E.
    We begin in Part I by describing and modeling how merchants and consumers decide whether to adopt and use a particular payment technology and then introduce the complications of network effects and multi-sided platforms. In Part II, we describe the various roles that the government may assume vis-à-vis any new technology, namely, legislator, fiduciary, or seller. Part III then discusses the tools that the government has available to influence public preferences. Part IV argues that despite the availability of these tools, the government generally should not act to promote particular technologies.
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    Oregon Law Review : Vol. 87 No. 2, p.637-670 : Punitives, Damaged: The Troubling Due Process Implications of Philip Morris v. Williams and the Case for a Sounder Approach to Litigating Third- Party Harm
    (University of Oregon School of Law, 2008) Landau, J. Aaron
    Part I of this Comment summarizes the history of punitive damages jurisprudence leading up to the conflict in Philip Morris. Part II discusses the factual and procedural history of Philip Morris and explains the Supreme Court’s holding in the case. Part III analyzes the Court’s reasoning and the problems it presents upon real-world application. Part IV concludes this Comment by briefly discussing an alternative approach that is both clearer than the Court’s standard and more protective of a defendant’s rights under the Due Process Clause.
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    Oregon Law Review : Vol. 87 No. 2, p.671-712 : Opening Medical Settlements for the Public Good: Why Medical Cases Justify Secrecy in Settlement
    (University of Oregon School of Law, 2008) Meisen-Vehrs, Hannah V.
    Part I of this Comment summarizes the arguments for and against secrecy in settlements, and the particular benefits of secrecy in medical cases. Part II provides an overview of the Dalkon Shield cases and focuses primarily on the competing interests of the claimants, the defendants, and the public. Part III explains how settled cases can avoid public disclosure in states without sunshine laws and how sunshine laws alter these procedures. It also examines some important components of four states’ sunshine laws and then applies those principles to the Dalkon Shield example to show how these laws fail to protect privacy in medical cases. Finally, Part IV proposes three alternative methods of protecting the public from harm while minimizing the effect on claimants with legitimate privacy interests.