Law In Most States Research Articles

What I Learned from Schiavo

What I Learned from Schiavo Gerald S. Witherspoon (bio) By the time I retired as a lawyer specializing in estate planning and conservatorships, I must have drafted at least a thousand durable powers of attorney for health care. Because of their adaptability to unforeseeable contingencies, DPAHCs are the preferred form of advance health care directive for most Americans. They work by identifying someone—an "agent"—to apply general instructions to circumstances in which the "principal" can no longer make particular wishes known. As a disproportionate number of my clients, while still legally competent, were already suffering from terminal illnesses that typically end in a significant period of incapacity, both the clients and I had every reason to explore thoroughly the range of available options in wording their advance health care directives. I had ample reason to be careful in my own DPAHC, too, as I've had a couple of close encounters with death in recent years. But my health care providers helped me to dodge the bullets and live (quite happily, as it turns out) to tell about them. First, I want to offer five observations about how DPAHCs work. I believe most experienced estate planners and even most of my clients, if they thought about the matter, would endorse these thoughts. 1. Although most people initially think otherwise, the law in most states does not allow an advance health care directive to tie one's hands. If the patient has a change of heart about the subjects covered by the written directive, the patient's revised oral or even gestural instructions will trump the written document (assuming the patient is still able to make his or her wishes known, however awkwardly and by whatever means, and in which those wishes "make some kind of intelligible sense" to the person's health care providers). Further, that's a good safeguard, in most people's judgment. It should reassure clients who, in the course of preparing an advance health care directive, are asked to make prejudgments about a lot of remote contingencies that they find difficult or painful even to contemplate. To be sure, that safeguard would not help a patient who needed to communicate a change of heart about health care services but was too incapacitated to do so by any means whatsoever. A few bystanders to the Theresa Schiavo saga believed that such was the case with her when her proxy or the courts considered the question, "If she could communicate, what would she say, after being in a 'vegetative state' for more than twelve years, about whether her feeding through a gastrostomy tube should be stopped or continued?" But surely it must be an exceptional case in which a patient who has been wholly unresponsive for an extended period of time continues to have an actively conscious interior life. And in my opinion, asking agents, loved ones, or courts to obsess on that remote possibility, as on the possibility of Lazarus's rising from the dead, is to torture already griefstricken bystanders in an unconscionable manner. 2. People selecting agents in DPAHCs are well advised to choose individuals whose authority is ranked rather than paired ("A, then B," rather than "both A and B, unless one of them has completely dropped out of the picture, in which [End Page 17] case either A or B"). Ranking will avoid the risk of deadlock in quickly moving circumstances. 3. Equally important, the agents named in a DPAHC should be polite and credible to health care providers but firmly insistent about their mission. The simple facts are these: hospitals are busy places, doctors are busy professionals, and incapacitated patients (the only kinds covered by advanced health directives) are often quite sick. So the physician will usually do what he or she deems best (or believes will least expose the physician to legal liability) unless the patient's agent is steadily insistent on some other "credible" course of action that evidently is supported by the language of the advance health care directive. And the fact that these realities do not track the law governing DPAHCs rarely carries much weight. When push comes to shove, challenging health care providers' actions in the...

Attorney-Client Privilege versus Mandatory Reporting by Psychologists: Dilemma, Conflict, and Solution

ABSTRACT Buried within the laws of most states lies a potential tension between psychologists and attorneys related to mandatory reporting of certain crimes that may be divulged during psychological evaluations. In the United States, psychologists and a number of other professionals are required by law to report past criminal conduct (e.g., child or elder abuse); however, in only two states are attorneys subject to mandatory reporting of child abuse. The disparity between the ethical and legal duties of the two professions may create a serious dilemma with significant repercussions for both parties. This paper provides a brief overview of the legal and ethical responsibilities for both professions and highlights potential areas of conflict. Recommended steps to avoid such conflicts are then offered.

Law’s effect on the quality of end-of-life care: Lessons from the Schiavo case

The political circus surrounding Terri Schiavo's death is unlikely to repeat itself soon in other cases but the underlying event that precipitated the furor is a recurrent clinical problem-the problem of conflict among family members about withdrawing or withholding life-prolonging treatment for an incompetent patient who had left no advance directive or appointed healthcare proxy. The laws of most states purport to solve this problem by automatic appointment of one person among the disputing family members. However, this forced resolution of the family conflict does not clearly reflect the prior values of the incompetent patient and is likely to intensify rather than ease that conflict, providing no demonstrable benefit to the incompetent patient and complicating the psychological processes of mourning for the surviving family. This article explores the benefits of a different legal rule that would require family consensus before life-prolonging treatment is withdrawn or withheld for an incompetent patient who has indicated no prior wishes regarding the resolution of family conflict.

Terminating artificial nutrition and hydration in persistent vegetative state patients

This article presents an overview of current state law governing the right to terminate life-sustaining treatment in the United States as it relates to refusal of artificial nutrition and hydration (ANH) for patients who have been diagnosed as being in a persistent vegetative state (PVS). The article was stimulated by the efforts of Michael Schiavo, Terri Schiavo’s husband and legal guardian, to discontinue ANH for her, and the ensuing controversy. Like many other neurologists, lawyers, and ethicists, we assumed that the law governing withdrawal of ANH in patients diagnosed as being in a PVS had become relatively settled and that the prolonged litigation occurring in Florida was the exception rather than the rule.1,2 We reviewed state laws to ascertain whether this assumption was indeed accurate. End-of-life decision making is largely governed by state law, although the states’ prerogatives are subject to federal constitutional constraints ultimately enunciated by the US Supreme Court. Our analysis focuses mainly on patterns and variations in state statutes and does not encompass a comprehensive review of case law. Fortunately, in the present context, the statutes in most states provide fairly clear guidance to physicians and hospitals about whether ANH may be withdrawn from a patient in a PVS, and there is little need for resort to case law in most states to clarify their meaning. We used Lexis-Nexis and Westlaw legal databases to conduct a search of all state laws governing end-of-life decision making. We used the following search terms: permanent vegetative state , persistent vegetative state , artificial nutrition and hydration , advance directive , living will , health care power of attorney , coma , unconscious , terminally ill , terminal condition , surrogate , and proxy . We reviewed all statutes that contained any of the search terms and saved for analysis …

Rocky Point: A Lone Outpost of Sunday Baseball in Sabbatarian New England

Rocky PointA Lone Outpost of Sunday Baseball in Sabbatarian New England Charlie Bevis (bio) Baseball games played on Sunday at Rocky Point, Rhode Island, from 1891 through 1917 illustrate the dichotomy that Sunday baseball once presented in New England society. The term Sunday baseball was once as divisive a term as abortion is today, during the late nineteenth and early twentieth centuries when the nation struggled with Sunday changing from a day of rest to a day of leisure and ultimately to a day of recreation. Many citizens, particularly the more prosperous and influential ones, held a deep religious conviction that baseball detracted from the sanctity of the biblically specified day of rest. Where Puritan influence was reflected in the statutes, such as the laws of most states in the eastern portion of the country, Sunday laws were used to prohibit professional baseball games. Before 1900 the Sunday laws posed a huge problem for many people who desired to view a match of the increasingly popular game of professional baseball. At the turn of the century the typical workweek for most working people was at least six days of ten-hour days, with Sunday and the infrequent holi-day the only time off. "Sunday stood in opposition to relentless work for the majority of nineteenth century Americans," Alexis McCrossen wrote in Holy Day, Holiday: The American Sunday. "The six working days blended into one unit—the workweek—in contrast to Sunday, the day of rest."1 Patrons of ballgames played on Monday through Saturday needed to have the flexibility in their work schedules to find the time to attend an afternoon contest, since baseball was then played exclusively during the daytime. Baseball owners appealed to middle-class patrons to fill seats in their ballparks, not only because the middle class had the time and money to attend games but also because they helped deem baseball as respectable recreation. Workers in the burgeoning industries of America generally were excluded from the opportunity to observe a ballgame. As one historian wrote: "The result of an onerous work load was that it was difficult for craftsmen and almost impossible [End Page 78] for unskilled personnel to attend a ball game unless they worked unusual hours like a baker, took time off from work, were unemployed, had a rare holiday, or lived in a city that permitted Sunday baseball."2 In the 1890s the unavailability of Sunday baseball within a 150-mile radius made Rocky Point, Rhode Island, a popular destination for many New England citizens seeking to watch regular games of the Providence Minor League club, as well as exhibition matches with Major League teams. For a quarter century until World War I, Rocky Point was a tiny island of illicit professional baseball on Sunday within the vast New England ocean of strict Puritan observance of a Sunday day of rest. Open Air and Sunshine "The same set of laws govern both Providence and Rocky Point and by statute Sunday baseball is illegal," the Washington Post described the situation in 1918. "But the latter happens to be under the jurisdiction of a set of county officials who do not believe that healthful recreation in the open air and sunshine will corrupt the public morals just because it is taken on the first day of the week."3 While Massachusetts law prior to 1929 prohibited the Boston Major League teams in the National and American Leagues from staging games on their home grounds on Sunday, Rhode Island officials permitted a Minor League team in Providence to conduct Sunday games at the Rocky Point resort located fifteen miles south of Providence in Warwick, Rhode Island. Providence played more than 100 Sunday games at Rocky Point in Eastern League competition (which was renamed the International League in 1912) as well as dozens of exhibition games against Major League teams. "The New England descendants of the Puritans looked down upon the little state of Rhode Island as a sort of annex to Satan's hideout, because the lax officials of that state made it possible for the baseball fans of Providence and vicinity to revel in professional games on Sundays by traveling on crowded excursion boats...

Critical Gaps in Child Passenger Safety Practices, Surveillance, and Legislation: Georgia, 2001

Motor vehicle crashes remain the leading cause of death among US children 1 year of age and older. Although age-appropriate child passenger restraint use and back seating position are effective injury prevention strategies, many children 12 years of age and younger ride inappropriately restrained and seated in the front seat. In Georgia and in most states, surveillance of child passenger restraint use is less than optimal. Although child safety seat legislation is 1 of the most effective mechanisms for increasing correct restraint use and back seating position, Georgia's child occupant restraint law, like the laws in most states, falls short of practices recommended by government and child advocacy safety groups. The objective of this study was to document child passenger restraint use and seating position among children aged 0 to 12 years in Georgia and to use these study results to evaluate the efficacy of Georgia's child restraint surveillance and legislation. In May and June 2001, police roadblocks were used to collect information about child passenger age, restraint use, and seating position. Data were collected on 1858 children who were riding in 1221 vehicles in 24 different Georgia counties. Results showed that 56% of children were inappropriately restrained and/or in the front seat. The most problematic age groups included infants who were in forward-facing child safety seats (28%) and/or in the front seat (22%); children who were 5 to 8 years of age in car seat belts alone (88%), rather than age- and size-appropriate child safety seats (6%); and children who were 9 to 12 years of age and riding in the front seat (39%). We compared our results with the existing Georgia passenger restraint surveillance system and found that it would have missed 77% of the children in our study who were inappropriately restrained and/or riding in the front seat. In a similar comparison, Georgia's restraint law did not cover over 74% of the children in our study who were riding at risk. The results of this study highlight 3 important areas for improving child passenger safety: targeted interventions to promote booster seat use and riding in the back seat, expanded child passenger restraint and seating position surveillance, and expanded legislation to mandate booster seat use and back seating position.

Service Providers' Perceptions of Universal Newborn Hearing Screening and Intervention Training Needs

Following the initial implementation of universal newborn hearing screening initiatives currently required by law in most states, there is a need to move beyond the hospital follow-up to the delivery of services and support for children identified with hearing loss. A cadre of trained providers is needed to deliver these services. In order to provide training to professionals from varied backgrounds and disciplines expediently, one state provided training in a multidisciplinary context. Such an approach encourages broader follow-up, consistency across providers, and an enhanced multidisciplinary perspective for fostering collaboration across public and private providers. Results of trainees' self-assessments of their level of preparedness on specific objectives prior to and after eight training sessions are reported in this article. Significant increases were evident in participants' reported knowledge of and perceived ability to implement identified objectives. Qualitative results illustrated that participants gained knowledge of intervention strategies and techniques and expressed a desire for further training in this area.

Dollars and Death

Administrative regulations and tort law both impose controls on activities that cause mortality risks, but they do so in puzzlingly different ways. Under a relatively new and still-controversial procedure, administrative regulations rely on a fixed value of a statistical life representing the hedonic loss from death. Under much older law, tort law in most states excludes hedonic loss from the calculation of damages, and instead focuses on loss of income, which regulatory policy ignores. Regulatory policy also disregards losses to dependents; tort law usually allows dependents to recover for loss of support. Regulatory policy generally treats the loss of the life of a child as equivalent to the loss of the life of an adult; tort law usually treats the loss of the life of a child as less valuable. Regulatory policy implicitly values foreigners as equal to Americans; tort law does not. We argue that both areas of law make serious mistakes in valuing life and that each should learn from the other. Regulatory policy properly focuses on hedonic loss from death, and tort law should adopt this approach. But regulatory policy should imitate tort law's individualized approach to valuing the loss from death, including its inclusion of losses to dependents. If these changes were made, tort awards would be more uniform and predictable, and regulations would be less uniform and more stringent. In addition, average tort damages for wrongful death would be at least twice as high as they are today. With respect to dollar judgments for mortality risks, a pervasive issue is how to combine accuracy with administrability and predictability; both bodies of law could do far better on this score.

Race and seatbelt law enforcement: health policy in search of descriptive epidemiology

Primary enforcement of state seatbelt laws (motorists can be stopped and cited solely for seatbelt nonuse) more effectively prevents motor vehicle crash injuries than does secondary enforcement (motorists can be cited only if stopped for another offense). Enactment of primary laws in most states has been hampered by concern that enforcement would engender racial profiling, but little is known about racial differences in seatbelt law enforcement. To explore racial profiling in relation to state seat belt laws, we analyzed data from telephone interviews performed by the U.S. Department of Transportation with a national probability sample of motorists in 2000. The study population comprised 466 black and 3117 white drivers residing in 12 primary law states and 13 secondary law states from which there were five or more black survey participants. As a measure of profiling, race-specific seatbelt violation citation histories were compared for all motorists stopped by police in the preceding year who had not been wearing seatbelts at the time. Logistic regression was used in computation of prevalence odds ratios (OR) and 95% confidence intervals (95% CI) with and without stratification by type of state seatbelt law. For all states collectively, among blacks and whites stopped while not wearing seatbelts, blacks were nearly three times as likely to be cited exclusively for violating a seatbelt law (OR = 2.8; 95% CI = 1.0, 8.1). Stratification by state law, however, indicated that in primary law states blacks were nearly four times as likely as whites to be cited only for a seatbelt law violation (OR = 3.7, 95% CI = 0.8, 16.7), whereas in secondary law states blacks were more than three times less likely to be cited only for seatbelt law violations (OR = 0.32, 95% CI = 0.1, 2.0). Although these findings were based on a small size and confidence intervals were wide, they suggest that primary seatbelt laws may lead to racial profiling.

The Legality of Selling or Giving Syringes to Injection Drug Users

Laws limiting access to sterile syringes impede the public health goal that injection drug users (IDUs) use a new, sterile syringe for every injection to reduce blood-borne disease transmission. We sought to determine the legality of selling or giving syringes to IDUs to prevent disease. We used standard legal research methods to identify and analyze laws and regulations influencing the distribution of syringes in the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. A total of 51 jurisdictions had drug paraphernalia laws; 14 had syringe prescription laws or regulations; 11 required purchasers to show identification; 13 had legislation authorizing syringe exchange programs (SEPs). Since the beginning of the human immunodeficiency virus epidemic, 11 states have fully or partially deregulated syringe sales. Nonprescription retail syringe sales to IDUs for disease prevention purposes are clearly legal in 20 states, and have a reasonable claim to legality in 22 more. Sales to IDUs with a prescription are clearly illegal in only 3 jurisdictions. SEPs can operate legally in at least 21 states. Syringe access laws in most states may reasonably be interpreted to allow pharmacists to sell syringes to IDUs to prevent disease. In practice, however, unclear laws and pharmacist uncertainty as to their interpretation may constitute continuing barriers to syringe access for IDUs. A comprehensive public policy of ensuring syringe access for IDUs requires eliminating legal barriers to the sale, possession, and disposal of syringes, and educating pharmacists and law enforcement officials about the legality and public health importance of sterile syringe access.

Emergency psychiatry: physical and chemical restraint in the psychiatric emergency service.

In recent years we have witnessed a markedly increased sensitivity to the potential for abuse of the socalled police powers of physicians. The criteria for involuntary admission have shifted from a treatment model to a dangerousness model, while the philosophical shift toward treatment in the least restrictive setting has been accelerated by hard economic reality. Between 1970 and 1994, the number of episodes of psychiatric care more than doubled, while the number of inpatient beds was cut by more than half (1). Payment for psychiatric hospital care has also become entwined with dangerousness. Lack of access may now be more of a rights issue than is deprivation of liberty. Consequently, the concentration of aggressive patients in the hospital has risen (2), and hospitals have become increasingly dangerous places. Concern has also heightened about violence committed by mentally ill persons in the community. Emergency services are an increasingly important component in a process with very serious consequences for the consumer and the community. In this complex situation where emergency mental health professionals are asked to weigh a number of clinical, legal, and economic issues, debate now arises about the use of physical and chemical restraint or seclusion. Although restraint may well be justifiable in many instances in the psychiatric emergency service, its ultimate value remains unclear. In an extensive review of the literature, Fisher (3) underscored the utility and clinical efficacy of restraint and seclusion in maintaining patient and staff safety in a variety of psychiatric treatment settings. However, that review and others also convincingly point to deleterious effects of restraint and seclusion on patients, who perceive them to be coercive and traumatic (4,5). Early scrutiny of use of restraint in

Claims against corporate directors and officers for negligent misrepresentation: Is there coverage?

Environmental liabilities often give rise to corporate disclosure obligations by directors and officers in 10‐Ks, 10‐Qs, annual reports, and other financial reporting documents. What happens if an environmental disclosure ultimately proves to be wrong? Where litigation results from an inadequate or misleading disclosure, directors and officers will turn to their director‐ and officer‐liability insurance policies for defense and indemnity. After all, the very purpose of D&O liability insurance is to provide this sort of protection. Fraud, of course, is not covered; it is excluded under the express provisions of the insurance contract and is subject to a public policy bar of coverage under the law of most states. But what about negligent misrepresentation by corporate directors or officers in reporting on environmental liabilities? Negligent misrepresentation is not fraud. Surely coverage exists for negligence in the disclosure context, directors and officers may think, but they may be in for an unpleasant surprise. Numerous cases have held that no coverage exists. The law on insurance coverage for negligent misrepresentation claims is in a state of flux. In this article, we will discuss California law on this subject. The California Supreme Court spoke to the issue of insurance coverage for negligent misrepresentation in Randi W. v. Muroc Joint Unified School District, 14 Cal.4th 1066 (1997). The Supreme Court said that: “we may assume that standard business liability insurance is available to cover instances of negligent misrepresentation or nondisclosure. “Randi W., supra, 14 Cal.4th at 1078. However, the issue of such coverage was not squarely before the Court. So, the question arises: Is negligent misrepresentation covered, or isn't it? We consider the competing California law arguments of insurers and insureds in this article.

Belt Use Rates Among Taxicab Drivers in a Jurisdiction with License Points for Nonuse

In spite of mandatory seat belt use laws in most states, belt use in the United States is much lower than in other countries. Among taxicab drivers, who often are exempt from belt laws, use rates typically are lower than in the general population. Recently, the District of Columbia (D.C.) strengthened its primary seat belt law such that a driver not in compliance can be assessed a $50.00 fine and two penalty points on the driving record. This new law, which does apply to cab drivers, provided an opportunity to study the effects of a strong law among a population of drivers who could be adversely affected by the accumulation of license points on their driving records. Cab driver belt use was observed in the District of Columbia, as well as in Maryland and Virginia where cab drivers are not required to use belts. Belt use was much higher among D.C. cab drivers in the District than among drivers licensed in Maryland and Virginia. The overall use rate was 74% for D.C. cab drivers in the District, compared with 38% for Virginia cab drivers, and 20% for Maryland cab drivers in their own jurisdictions. Belt use among D.C. cab drivers also was higher in Maryland and Virginia than among drivers licensed in those jurisdictions. More research is needed to generalize these results to a wider population, but the findings suggest that fear of losing a driver’s license may provide a strong incentive to use seat belts.

Turning Servile Opportunities to Gold: A Strategic Analysis of the Corporate Opportunities Doctrine

The corporate opportunities doctrine (COD) regulates when and whether a corporate officer or director may appropriate new business prospects for her own account without first offering them to the firm. The doctrine -- a subspecies of the fiduciary duty of loyalty -- has been a mainstay of corporations law in most states for well over a century. At the same time, however, the COD has always been murky in application and is currently in a state of considerable disarray. In this Article, Professor Eric Talley attempts to chart a course out of this doctrinal quagmire by offering a contractarian account of the COD as a default mechanism for allocating intrafirm property rights between shareholders and fiduciaries. Within such a framework, Professor Talley develops a model of fiduciaries' incentive structures under various legal regimes. He then demonstrates that both the reach and the consequences of an legal rule depend crucially on the information structure that governs the underlying agency relationship. When relevant information available to shareholders and fiduciaries is complete and symmetric, the optimal rule allocates each new project to whoever is the lowest cost producer. When corporate fiduciaries possess private, unverifiable knowledge about new projects, however, the optimal COD has a strict-liability flavor, imposing damages that need not correspond to either the corporation's losses or the fiduciary's gains. Consequently, such a doctrine will frequently overdeter fiduciaries from appropriating certain projects and may underdeter appropriation of others. This observation suggests (among other things) that coherence in the COD would be greatly improved if courts paid more attention to information structure than is currently the norm.

Pretrial communication with defense counsel by medical examiners' pathologists.

Forensic pathologists (FPs) form opinions in homicide trials and often are key witnesses for the prosecution. Early access to the FP by defense counsel may be strategically important, but state statutes differ regarding pretrial availability of the autopsy report to the defense, and the degree of pretrial communication that is permissible or desirable between the FP and defense is unclear. We surveyed a sample of FPs to determine their practices and opinions regarding pretrial communication with the defense. We compared responses with years of training, early professional role models, local autopsy report disclosure statutes, and reasons for practices. All respondents indicated a willingness to informally communicate with the defense, but many would notify the prosecutor and some wanted prosecutor's presence or permission. Prosecutorial involvement correlated with work load and with stated reasons for practices. Case law in most states prohibits the prosecutor from interfering with defense communication with witnesses, including experts. However, witnesses are free to refuse to talk informally to the defense. Some states limit publication of the autopsy report outside formal trial discovery procedures. Only one state, Arkansas, does not allow the medical examiner to give out any information, thereby precluding informal communication with the defense in that state.

Assessing the occurrence of child sexual abuse: An information processing, hypothesis testing approach

Mental health professionals often become concerned with the question of whether a child has been sexually abused, if only because the laws of most states stipulate that they are mandated reporters. Mental health professionals are also concerned with this question because: (a) sometimes it is the principle referral question, (b) recent epidemiological studies suggest a sufficiently high base rate for routine assessment, (c) it is relevant to the diagnosis of Post-Traumatic Stress Disorder, and (d) it is relevant to treatment planning. In recent years, investigatory interviewing has become increasingly controversial with complaints of both false positives and false negatives. This paper critically reviews investigative interviewing and statement validity analysis. A model for understanding children's reports that is grounded in developmental information processing and hypothesis testing assessment is proposed.

Engineering and the law-products liability for medical devices: federal preemption of state lawsuits

The basis of product liability lawsuits and a trend in the law that can protect medical device manufacturers from these lawsuits are discussed. Section 402(A) of the Restatement of Torts, the basis for liability laws in most states, is reviewed. The King vs. Collagen Corp. case, in which King, diagnosed with an autoimmune disease, claimed that the disease was caused by Zyderm, a modified cow protein that is injected under the skin to correct wrinkles, is also reviewed. King sued Collagen Corp. for selling a defective product and for failure to properly warn her and her physician of the risks of using the product and lost the suit. >

Protecting Consumers From Uninsured Motorists: An Alternative Financing Mechanism

For over 65 years, state legislators have debated how consumers who have been injured by financially irresponsible motorists will be compensated. While uninsured motorists insurance has become the modal choice among several states, responsible motorists in most states must completely pay for this coverage themselves. Motorists who drive without liability insurance contribute virtually nothing to meeting the costs of accidents they cause. This paper proposes that premiums for basic limits of uninsured motorists coverage be collected by a small universal motor fuel surcharge. These state-collected premiums then would be distributed to insurers on the basis of the number of vehicles that they insure within the jurisdiction. It is proffered that this mechanism is both more equitable and significantly lower in cost for the average motorist than the various present mechanisms of financing uninsured motorists coverage. Recently, consumers in geographically dispersed sections of the country have found it increasingly difficult and more expensive to obtain automobile liability insurance. Some insurers have withdrawn from markets in Massachusetts and New Jersey alleging inadequate rates of return. With the 1988 California passage of Proposition 103, many insurers have limited new business. The inevitable outcome of higher premiums and reduced availability will be increasing numbers of uninsured motorists on the nation's highways. Industry sources have estimated that over 16 percent of registered motor vehicles already are uninsured; in some states the estimates are as high as 50 percent (Garcia 1989, 1990; Long and Gregg 1965; Melloan 1988; Synnott 1983). Concamitant with increasing numbers of uninsured motorists is the issue of how injured consumers will be compensated for damages imposed by financially irresponsible motorists. For over half a century, state legislatures have contended with this issue. In efforts to guarantee compensation to those injured in motor vehicle accidents, legislatures in several states have enacted five broad types of overlapping statutes, ranging from auto financial responsibility laws to no-fault auto insurance laws. The existence of multiple laws in most states suggests that an effective solution has yet to be found. The consumer decision of whether or not to purchase auto liability insurance has distinct public good aspects. There are clear externalities or spillovers associated with this decision (Keeton and Kwerel 1984). There have been longstanding attempts by state legislators to intervene. But to date, the Achilles heel in every attempt to contend with financially irresponsible motorists has been enforcement. Because enforcing financial responsibility statutes through denial of highway use has proven difficult, it is reasonable to expect that significant evasion exists (Synnott 1983). For instance, Virginia is one of many states, which as a condition of registration, asks the registrant whether the vehicle is insured for at least the state-mandated minimum liability limits as one means of satisfying its financial responsibility law. In 1988, 0.12 percent of those seeking registration volunteered that they had not purchased liability insurance. Yet in the same year, when 338,000 owners of Virginia registered vehicles were asked randomly by the Commonwealth to document their coverage, almost 20,000 (5.91 percent) could not do so (Virginia 1989). Thus, for every one acknowledged uninsured motorist, there were 50 unacknowledged free riders. While a number of researchers have investigated the costs imposed on society by uninsured motorists (Calabresi 1970; Keeton and Kwerel 1984; Vickery 1969), less research has been conducted on using public sector financing mechanisms to address motor vehicle insurance issues. Over the last 20 years, several authors have proposed that to varying degrees auto insurance could be purchased via a tax on motor fuel. …

Grandparent visitation rights: Rendering family dissension more pronounced?

Legislation allowing grandparents to file suit to gain court-ordered visitation with their grandchildren is now law in most states. Legal issues and reported cases are presented, and problems for children and families that are posed by this sort of legal conflict are outlined.

Severe neurological impairment: legal aspects of decisions to reduce care.

Decisions to reduce care for patients with severe neurological impairment may raise legal questions. The laws of most states now authorize physicians to stop care for those who have suffered irreversible cessation of all functions of the brain ("brain death"). Where state law is not explicit, it is nevertheless probably lawful to regard brain death as death for legal purposes so long as currently accepted criteria are satisfied. Several courts have ruled that it is lawful to reduce care for patients in vegetative states, but have prescribed differing standards and procedures for implementing such decisions. The issue of whether parents can authorize physicians to reduce care for neurologically impaired children is the focus of current litigation. Implicit in this litigation is the question of how severe neurological impairment must be before parents and physicians may lawfully agree to reduce care. For severely impaired but not vegetative adults, there is some legal authority to justify certain decisions to reduce care. The issue of whether withholding feeding from a severely demented patient with life-threatening medical problems constitutes criminal behavior is now being considered by a state supreme court.