Undivided Loyalty Research Articles

Beware Those Bearing Gifts: Physicians' Fiduciary Duty to Avoid Pharmaceutical Marketing

Pharmaceutical marketing has pervaded the practice of medicine. In some forms it can compromise the quality of patient care. Despite the fact that professional organizations such as the American Medical Association (AMA) and many states have taken steps to admonish or prohibit physicians from accepting gifts or compensation from agents of pharmaceutical companies seeking to market their products, the practice has not stopped. This article proposes using the physicians’ fiduciary duty to their patients as a means to further encourage physicians to refrain from inappropriately accepting these gifts and to ensure that the well-being of their patients remains their focus. It will also reassure patients that they can trust and rely on the undivided loyalty of their physicians. Two carefully circumscribed exceptions to this duty are noted: one for clinical research sponsored by pharmaceutical companies and another for free samples obtained from a third-party distribution system. These exceptions will help preserve many of the positive benefits of marketing. By recognizing this fiduciary duty, physicians will be encouraged to abstain from inappropriate exposures to pharmaceutical marketing that may compromise their medical judgment and encourage a return of the practice of medicine to its patient-centered focus.

Ramifications of Diminished Capacity

Ramifications of Diminished Capacity

Conflicted Justice: The Department of Justice's Conflict of Interest in Representing Native American Tribes

This article addresses an ongoing problem in the area of Indian law. For years, the Native American community has complained of conflicts of interest in the Department of Justice. The conflict within Justice arises from the federal government's special trust relationship with the Indian tribes. The federal government assumed a special trust relationship with the Indian tribes early in the United States' history, that has developed over time through treaties, statutes and case law. The trust relationship represents an affirmative duty on the part of the United States to protect the tribes, serve their best interests and uphold the other trust duties under a standard of good faith. As trustee, the United States, usually acting through the Department of the Interior, manages a significant portion of tribal land and a great deal of tribal resources. The Department of the Interior retains responsibility for many other federal programs and federal lands. The Department of Justice represents Interior and most other federal agencies in court. Thus, Justice must represent both tribal and non-tribal interests, often involving the same land or within the same case. Indeed, Justice must make litigating decisions in these cases with the knowledge that a position in one case may impact another case. A private trustee could not function in the manner that Justice functions. Doing so would violate the duty of undivided loyalty required from a trustee. Justice, however, maintains that the duties of a private trustee do not apply to Justice. In doing so, Justice relies on a Supreme Court case, United States v. Nevada, and a 1979 letter from then Attorney General Griffin Bell. To show the inaccuracies in Justice's position, I examine the underpinnings of Justice's position, beginning with the letter by former Attorney General Griffin Bell and then turning to Nevada v. United States. After also examining the lower courts' interpretation of Nevada, I conclude that Nevada holds simply that when Justice proceeds in the face of congressionally imposed conflicting interests, the doctrine of res judicata still applies to bind the United States and the tribal parties to that litigation. It may seem that Indian tribes could be adequately compensated for conflicts through money damages. However, due to a pair of Supreme Court cases, breach of trust actions based on conflicts of interest are not viable. In this article, I examine and explain how this avenue of redress is effectively closed to tribes. Thus, I argue the solution to the conflict problem must be found earlier in the decisional process. In order to fully protect Native American rights, any successful solution must address the problems created by the Eleventh Amendment and the rules of preclusion. I therefore recommend the creation of a separate litigating agency outside of Justice and Interior and the adoption of special preclusion rules to govern litigation by Justice as trustee. This combination will provide both procedural and substantive protection to the Native American beneficiaries and will allow the United State to fulfill its role as trustee.

The Failure of Bismarck’s Kulturkampf: Catholicism and State Power in Imperial Germany, 1871–1887 (review)

Failure of Bismarck's Kulturkampf Catholicism and State Power in Imperial Germany, 1871-1887. By Ronald J. Ross. (Washington, D.C.: Catholic University of America Press. 1998. Pp. xvi, 219.$66.95.) Historical conflicts take a particularly violent course when cultural issues are at stake. Conflicts about cultural homogeneity are especially prone to materialize in uncountable ways and on various levels of contestation. German Kulturkampf between the Catholic Church on the one hand and liberalism and the Prussian bureaucracy on the other engulfed much of the 1870's and 1880's, though with waning energy. dichotomies of this hot family feud within German society dominated the formative period of the German party system and had a long-term impact on Germany's political culture well into the twentieth century According to Ronald J. Ross, the Kulturkampf ended in complete failure-a conclusion quite contrary to recent German scholarship, which celebrated the triumph of civil marriage. Indeed, the German Catholic Church was by no means subordinated to the interests of the newly founded nationstate. Instead, its spiritual as well as its political leaders emerged with a considerably higher degree of autonomy than before. Accounts of the Kulturkampf differ according to the working definition of its historical character and origins. Who were the warriors? Was it fought between the ultramontane Catholic Church and Bismarck or between Catholicism and liberalism or between the Center Party and Bismarck? Ross sees the Kulturkampf primarily as a struggle between authority ultimately embodied in the person of the imperial chancellor Otto von Bismarck and his minister of school affairs, Adalbert Falk, fighting the historically embedded rights of the Catholic Church, which, according to Bismarck, constituted a state within the state. While subscribing to a view of the Kulturkampf centered on authority-a view favored by Borussian historiography-Ross discusses the various mechanisms through which the Prussian tried to win the undivided loyalty of its Catholic subjects by forcefully loosening them from ultramontanism. Attempts to produce a decidedly anti-ultramontane loyalty to the Prussian encountered widespread resistance due to the failure to enforce the political will of Bismarck and his allies in at least six areas discussed by Ross: establishment of a new reformation, the Old Catholic Church, of the May Laws and the pulpit decree, expulsion of Catholic orders, the legal entanglements officials were facing, as well as pressure applied to political Catholicism and the Catholic press. The Kulturkampf ultimately failed, however, because it was backed by political institutions and managerial arrangements that were inappropriate for effective enforcement (p. …

Physicians' ethical beliefs about cost-control arrangements.

Although much has been written about the ethics of new methods of health care financing, little is known about the extent to which physicians experience these cost-control arrangements as ethical problems. A cross-sectional telephone survey of 1,549 physicians, 8 to 17 years after residency, randomly selected from 75 US metropolitan service areas (response rate, 74.0%). Only 17.0% believed that financial incentives to limit services are ethically acceptable. Although 52.9% thought that physicians should try to abide by guidelines discouraging the use of interventions with possible but unproven benefit, only 14.5% thought such guidelines should be enforced by payers. Only 5.7% thought that it was morally acceptable for payers to discourage physicians from telling patients about their personal financial incentives, and only 9.1% found compliance with such restrictions morally acceptable. Changes in the health care system in the past 5 years were believed to have had a negative impact on their own patients' trust in them by 50.6%, and 80.8% believed that changes in the health care system in the past decade have diminished physicians' commitment to an ethic of undivided loyalty to patients. In multiple regression analysis, physicians who reported that the overall personal financial incentives in their practices encouraged them to reduce services were significantly more likely to have ethical objections to such incentives, to believe their own patients' trust in them had diminished, and to believe that the ethic of undivided loyalty to patients had diminished. Many of the methods now commonly used to influence medical decision making are considered ethically objectionable by most midcareer physicians. Whether their ethical disquiet about these arrangements is justified cannot be answered from these data.

Clinical loyalties and the social purposes of medicine.

Physicians increasingly face conflicts between the ethic of undivided loyalty to patients and pressure to use clinical methods and judgment for social purposes and on behalf of third parties. The principal legal and ethical paradigms by which these conflicts are managed are inadequate, because they either deny or unsuccessfully finesse the reality of contradiction between fidelity to patients and society's other expectations of medicine. This reality needs to be more squarely acknowledged. The challenge for ethics and law is not to resolve this tension--an impossible task--but to mediate it in myriad clinical circumstances in a way that preserves the primacy of keeping faith with patients while conceding the legitimacy of society's other expectations of medicine.

Leftist sexual politics and homosexuality: a historical overview.

For almost a full century now, the revolutionary prospect of socialism has fuelled opening forays first of the homosexual emancipation and later of the gay liberation movements, both in Europe and in North America. It inspired Edward Carpenter and Magnus Hirschfeld at the turn of the century; André Gide and Richard Linsert in the post-World War I years; Harry Hay and Jim Kepner in the post-World War II era; and the British and American Gay Liberation Front, the Italian Fuori!, the French FHAR, the German "Rotzschwule," and the Dutch Red Faggots following the Stonewall rebellion. While the official socialist parties of Northwestern Europe may have made only limited contributions to homosexual emancipation, they certainly have a better record than conservative and Christian parties and even the liberals, who have consistently, if contradictorily, underlined the freedom of private life. Even so, parties across the entire political spectrum have gradually come to endorse at least some of the movement's goals. As it has advanced, the gay movement has changed as well, and it now finds itself pulled in divergent directions. Gay leftists who still subscribe to the ideals expressed in Marxist and utopian socialist writings now find themselves at demonstrations shoulder-to-shoulder with members of ACT UP and Queer Nation, to say nothing of gay conservatives and gay Christians. The successes achieved by the contemporary gay movement despite or precisely because of its diversity support Foucault's argument that "there is no single locus of great Refusal, no soul of revolt, source of all rebellions, or pure law of the revolutionary. Instead there is a plurality of resistances, each of them a special case...." At the close of the twentieth century, the welfare state has reached its apogee in Northwestern Europe. As blue-collar workers historically committed to class struggle have become relatively well-to-do and minoritarian, socialist parties have increasingly lost their traditional base of support and been forced into the defensive. Depending only on the socialists would mean relying on an ineffectual partner, for nowhere are they in a stable position of power. Long before the collapse of "really existing socialism" in Eastern Europe and the former Soviet Union, gay and lesbian movements began developing their own autonomous politics independent of parties. They moved in this direction in part because the coalition with leftism so frequently led to disappointment, particularly when gays and lesbians working within socialist parties were called upon to subordinate or abandon their own goals in favor of party platforms. In other cases the gay-left coalition failed to yield results because a single-minded reliance on one party placed limits on lobbying other parties and entering compromises. We have reached a time when inherited ideologies are no longer capable of laying claim to the undivided loyalty of the gay movement, if indeed they ever were. As it has developed autonomous theories and practices, the gay movement's choice of coalition partners has increasingly come to be based on pragmatism and success in advancing the gay agenda. Indeed, the roles of the gay movement and political parties have undergone a notable switch in recent years, with parties currying the support of the gay movement rather than vice versa. This signals a shift from the desire for politics to a politics of desire, going far beyond traditional socialist ideologies.

Serbian Textbooks: Toward Greater Serbia or Yugoslavia?

As is well known, the Kingdom of the Serbs, Croats, and Slovenes, which was founded on December 1,1918, did not achieve the success envisaged for it. It is generally assumed that the state was the direct product of Yugoslavism, a Croatian concept formulated in the nineteenth century, which found adherents among the Serbs and Slovenes. Although there is no consensus among scholars concerning the precise definition of Yugoslavism, in its basic terms the concept called for the union of the Serbs, Croats, and Slovenes in one state. The proponents of Yugoslavism argued that as long as the three nations remained separate they were subject to domination by their stronger neighbors, whereas united they would be in a better position to determine their own future. These proponents never agreed on the exact political organization of the union, whether it should be a centralized or federalized state, but they assumed that the kingdom would have one army and a single foreign and trade policy, and that each nation would retain considerable local autonomy, for example, in education, religious affairs, and police jurisdiction. Yet the ultimate success of Yugoslavism was dependent on the acceptance by Serbs, Croats, and Slovenes of the basic premise that they were in essence one people, and that eventually they would no longer give primacy to their Serbianism, Croatianism, and Slovenianism but would offer their undivided loyalty to the larger Yugoslav concept.

Nursing administration and undivided loyalty

Nursing administration and undivided loyalty

Nursing administration and undivided loyalty

Nursing administration and undivided loyalty

Oedipus Agonistes: Mothers and Sons in Richard Wright's Fiction

A central problem in understanding Wright's fiction has been coming to grips with the violence, motivated or unmotivated, toward female characters. In Alas, Poor James Baldwin observes that in black fiction there is a great space where sex ought to be; and what usually fills this space is violence. Baldwin interprets the violence in Wright's fiction compulsive and gratuitous because the source is never examined. But Baldwin suspects that the root of violence in Wright's fiction is the rage of a man being castrated, that is, unmanned by a white society. 1 This essay endeavors to show, however, that the pervasive violence toward women in Wright's fiction is caused by the irreconcilable oedipal dilemmas that afflict his heroes. With the publication of studies by Margolies and Brignano 2 we have derived a fuller understanding of the Freudian dimensions in Wright's fiction. Neither of these studies, however, extends its perspective to the important mother-son relationship. Fabre's recent biography is more helpful for the personal dimensions behind the fiction. For instance, Fabre recounts Wright's intense interest in Freudian interpretations of violence exemplified in Wright's involvement with Clinton Brewer, a young black man imprisoned for killing a woman. Wright introduced Brewer to Dr. Frederic Wertham, a Freudian psychoanalyst, who helped plead for Brewer's release. Wright and Wertham were successful; however, Brewer murdered another woman shortly after his release and this time Wright and Wertham had to marshal their energies to save Brewer from execution. 3 Wright's interest in the Brewer case and his association with Wertham can be utilized to understand the general depiction of women in his fiction. That is, his increasingly self-conscious treatment of the Freudian theme centers on the relation to and influence of the Significantly, women do not appear in Wright's fiction except mothers or surrogatemother figures. Consequently, the hero is inevitably engaged in a fruitless quest for the mother's undivided loyalty. As Simone de Beauvoir has observed, Since every woman is endowed with the general essence of Woman, therefore of the Mother, it is certain that the attitude held toward the Mother will have repercussions in a man's relations with wife and mistresses. 4 It is a pattern in Wright's heroes that they are both strongly attached to the motherimage and at the same time disillusioned by the corruption of what should have been her sexual inviolability. They are forced, then, into the position of accepting woman either an asexual, pure being, or a whore, soiled and deserving of death. Fabre traces Wright's personal ambivalence and fear of women to the beating he received from his mother after he set a fire in their house. Richard, according to Fabre, regarded this punishment as a betrayal. It not only seriously inhibited his independent spirit but also caused him to doubt his relationship to his mother.... This episode brutally shattered the emotional security he had derived from the exclusive affection of his mother. 6

Marshal Sarit and Absolutist Rule in Thailand

ON SEPTEMBER I7, I957, Field Marshal Sarit Thanarat and his Americanequipped troops seized control of Thailand's government. Although it was not apparent at the time, this move was more than just another coup d'etat in a country where military officers have long played a predominant role in the political and commercial life of the nation; the overthrow of the former regime headed by Field Marshal Phibun Songkhram marked a major turning point in the evolution of the Thai political system. The purpose of this article is to survey briefly the development of the Thai government since the beginning of the constitutional regime in I932 and to assess the current trend of the Sarit government under political absolutism. The establishment of a constitutional government in June i932 ended more than five hundred years of absolute rule in which the monarchy was regarded as having quasi-divine powers and served as the sole source of political authority. Throughout this period the political and social structure of the country became rigidly stratified and the people were indoctrinated from birth to render undivided loyalty to the king. The impact of the West in the nineteenth century caused the absolute monarchy to become increasingly humanitarian and to hasten the adoption of many modern technological and administrative innovations.' The benevolent policies of the monarchy and increasing contact with the West gradually gave rise to new political groups who demanded a more modern and liberal form of government. The bloodless coup which overthrew the absolute monarchy was staged by a small group of intellectuals and military officers who called themselves the People's Party.2 Led by a young commoner named Pridi Phanomyong, the Party promulgated a constitution which established a modified parliamentary system patterned largely on that in Great Britain and France. While professing Western democratic ideals, the leaders of the Party organized the new government in a manner that assured their remaining in power for at least ten years. The newly established Assembly of People's Representatives was divided into two categories of representatives, one-half elected by the people and one-half appointed by the government. The new constitution,

Haddock v. Civil Service Commission

Mr. Justice Tergiversation delivered the opinion of the court: The petitioner Haddock applied for a restraining order against the Civil Service Commission, which has given him thirty-day notice of discharge from federal employment for failure to comply with the so-called Incubator Act passed by the 801/2 Congress, January 1, 1949. The case comes before us by certiorari. Counsel for the Commission urge that Haddock is a litigious person given to bringing nuisance suits and is not entitled to relief in equity. We take judicial notice that the petitioner has often vexed the British courts with impertinent suits. (See A. P. Herbert, Misleading Cases at the Common Law, Uncommon Law, More Misleading Cases.) Nevertheless, the petitioner here raises a substantial issue; and even a litigious Englishman is a person within the meaning of the Fifth Amendment. It appears that Haddock has been employed by the Bureau of the Census to devise a system of questionnaires for the discovery of Communists, fellow-travellers, potential Communists, and potential fellowtravellers, to be applied to the whole population in the 1950 census. It is planned to publish the names of the subversive characters thus discovered for the information of their employers, relatives, and friends. We have permitted the House Committee on Un-American Activities and a number of patriotic organizations to appear as amici curiae on behalf of Haddock. It is argued that Haddock possesses a special skill in the detection of unconventional views, that he is indeed a sort of human spectroscope, and that such a work of national importance should not be interrupted. Briefly put, the Incubator Act provides that all employees in both the classified and unclassified services, with the exception of policy-forming officers, must under pain of discharge submit to an operation of sterilization to ensure that they do not beget or bear children. The reason is obvious, but is in any case stated in the preamble. The government deserves and needs the undivided loyalty of its employees. It has long been recognized that family ties establish interests, preoccupations, and loyalties inconsistent with whole-hearted devotion to the public good. Haddock alleges that the act deprives him of life and liberty without due process of law. He argues that the right of procreation and the right to have a family are natural rights of which government may not deprive him. But we have already recognized that these fundamental hu-

Corporate Trustee's Retention or Purchase of Its Own Securities Violates Rule of Undivided Loyalty

Corporate Trustee's Retention or Purchase of Its Own Securities Violates Rule of Undivided Loyalty

Stonewall Jackson and the American Civil War

Thomas Jonathan Jackson was the most renowned and skillful commander of Confederate troops in the Civil War. Not even Lee or Stuart matched his purely military intelligence--his intransigence at Bull Run (which earned him the name Stonewall), his knack for knowing when to attack and retreat, which he showed throughout the Shenandoah campaign, his tactical brilliance at Chancellorsville. He was stern, a strict Calvinist, a single-minded officer for whom religion and the army were everything. Yet he had the undivided loyalty of the men he commanded. This classic biography by the British historian G. F. R. Henderson, first published in 1898, is a meticulous study of Jackson's military campaigns from the Mexican War where he served under Winfield Scott to his death in 1863 at Chancellorsville. A romantic view of a great hero, inflected by the political views of the day, this work has remained a standard account of one of the Civil War's great warriors, here introduced by one of the Civil War's best historians.