Cornell Journal of Law and Public Policy最新文献

The continued presence and growing rates of individuals infected with human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) in the United States has come to reflect an epidemic of significant proportion. Unfortunately, federal legislation has been eerily silent regarding the establishment of protections against health status-based discrimination for asymptomatic HIV and AIDS sufferers. Congress has done little to change this reality, despite the institution of major healthcare system and insurance reform by the Obama Administration in 2010. This Note argues that "Obamacare" and the two laws that define it—the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010—fail to address asymptomatic HIV and AIDS infection as a significant source of health status-based insurance discrimination. As a result, these individuals continue to be ignored, subject to the ambiguities of "disability"- based legislation, and relegated to the status of a legally invisible class.

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins's reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings, and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation.

Defective consumer products impose significant costs on consumers and third parties when they cause fatalities and injuries. This Article develops a novel approach to measuring the true extent of such costs, which may not be accurately captured under current methods of estimating the cost of dangerous products. Current analysis rests on a narrowly defined set of costs, excluding certain types of costs. The cost-of-injury estimates utilized in this Article address this omission by quantifying and incorporating these costs to provide a more complete picture of the true impact of defective consumer products. The new estimates help to gauge the true value of the civil liability system.

Despite civil and criminal sanctions, elder abuse is a prevalent, underreported, and underprosecuted event in the United States. Traditional reporting legislation and common law remedies have had minimal effect on the incidence and prevalence of elder abuse. The epidemic nature of elder abuse is projected to increase exponentially as the elderly population grows disproportionately over the next several decades. The fragmented system of detecting, reporting, and prosecuting this abuse across a wide range of medical and legal settings creates a poor structure to effectively allow a potentially abused patient to have his/her abuse circumstance communicated to the relevant parties to protect the patient, have his/her situation reported and investigated, and, if necessary, have the perpetrator brought to justice. Emergency rooms and other facilities where elders present for care should be staffed by clinically trained persons who have familiarity interacting with patients and providers across settings of care, and who are trained to detect and report abuse. Nursing case managers fill this role well because they are able to coordinate efforts among acute and long-term care facilities while also being able to supply patients with legal and clinical information about elder abuse. In addition they may support prosecution efforts through their clinical observations and expertise. Hence, clinical case managers are able to coordinate efforts lacking in the current system to effectively evaluate, report, protect, and arrange for relevant services for the patient. Through clinical and special training in elder abuse, nursing case managers can provide support to prosecution efforts against the perpetrators of this most egregious crime.