Oregon Law Review : Vol. 87, No. 2 (2008)https://scholarsbank.uoregon.edu/xmlui/handle/1794/89682024-03-28T17:25:03Z2024-03-28T17:25:03ZOregon Law Review : Vol. 87 No. 2, p.353-400 : Illusory Consent: When an Incapacitated Patient Agrees to TreatmentVars, Fredrick E.https://scholarsbank.uoregon.edu/xmlui/handle/1794/91832015-06-17T22:53:08Z2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.353-400 : Illusory Consent: When an Incapacitated Patient Agrees to Treatment
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.
46 p.
2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.401-480 :Judicial Power and Moral Ideology in Wartime: Shaping the Legal Process in World War I BritainVorspan, Rachelhttps://scholarsbank.uoregon.edu/xmlui/handle/1794/91822015-06-17T22:48:14Z2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.401-480 :Judicial Power and Moral Ideology in Wartime: Shaping the Legal Process in World War I Britain
Vorspan, Rachel
75 p.
2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.481-580 : Buying Witness Silence: Evidence-Suppressing Settlements and Lawyers’ EthicsBauer, Jonhttps://scholarsbank.uoregon.edu/xmlui/handle/1794/91812015-06-17T22:52:31Z2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.481-580 : Buying Witness Silence: Evidence-Suppressing Settlements and Lawyers’ Ethics
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.
94 p.
2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.482-580 : Government Intervention in Emerging Networked TechnologiesLillquist, ErikWaldeck, Sarah E.https://scholarsbank.uoregon.edu/xmlui/handle/1794/91802015-06-17T22:51:49Z2008-01-01T00:00:00ZOregon Law Review : Vol. 87 No. 2, p.482-580 : Government Intervention in Emerging Networked Technologies
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.
52 p.
2008-01-01T00:00:00Z