This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.
{"title":"Legal Ethics and the Separation of Law and Morals","authors":"W. Wendel","doi":"10.2139/SSRN.687804","DOIUrl":"https://doi.org/10.2139/SSRN.687804","url":null,"abstract":"This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"91 1","pages":"67"},"PeriodicalIF":2.5,"publicationDate":"2005-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67801754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article employs a behavioral economic analysis to understand why Medicaid has failed to improve the health outcomes of its beneficiaries. It begins with a formal economic model of health care consumption and then systematically incorporates a survey of psychosocial variables to formulate explanations for persistent health disparities. This methodology suggests that consulting the literature in health psychology and intertemporal decision theory--empirical sources generally excluded from orthodox economic analysis--provides valuable material to explain certain findings in health econometrics. More significantly, the lessons from this behavioral economic approach generate useful policy considerations for Medicaid policymakers, who largely have neglected psychosocial variables in implementing a health insurance program that rests chiefly on orthodox economic assumptions. The Article's chief contributions include an expansion of the behavioral economic approach to include a host of variables in health psychology, a behavioral refinement of empirical health economics, a behavioral critique of Medicaid policy, and a menu of suggested Medicaid reforms.
{"title":"Behavioral economics and health policy: understanding Medicaid's failure.","authors":"Barak D Richman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article employs a behavioral economic analysis to understand why Medicaid has failed to improve the health outcomes of its beneficiaries. It begins with a formal economic model of health care consumption and then systematically incorporates a survey of psychosocial variables to formulate explanations for persistent health disparities. This methodology suggests that consulting the literature in health psychology and intertemporal decision theory--empirical sources generally excluded from orthodox economic analysis--provides valuable material to explain certain findings in health econometrics. More significantly, the lessons from this behavioral economic approach generate useful policy considerations for Medicaid policymakers, who largely have neglected psychosocial variables in implementing a health insurance program that rests chiefly on orthodox economic assumptions. The Article's chief contributions include an expansion of the behavioral economic approach to include a host of variables in health psychology, a behavioral refinement of empirical health economics, a behavioral critique of Medicaid policy, and a menu of suggested Medicaid reforms.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"90 3","pages":"705-68"},"PeriodicalIF":2.5,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25090836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"General bias and Administrative Law Judges: is there a remedy for Social Security disability claimants?","authors":"Jason D Vendel","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"90 3","pages":"869-809"},"PeriodicalIF":2.5,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25090837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Questions about the scope of the President's constitutional powers are in the news today like perhaps no time in recent memory. Splashed across the dailies and leading off the evening news are stories about executive power. Has the Senate invaded the President's power to appoint judges by permitting quasi-filibusters of nominees? Does the President have the right, as Commander-in-Chief, to order the torture of enemy prisoners? May the President instruct state courts to adhere to his reading of a treaty concerning the treatment of arrested foreign nationals?Dean Harold Krent's lively and eminently readable book, Presidential Powers, is nothing if not timely. In 200-plus pages of text, Krent canvasses the President's constitutional powers, focusing on law execution authority, foreign affairs powers, emergency powers, privileges and immunities, and the pardon power. The result is a Corwinesque book that weaves together arguments about text, structure, history, and doctrine to make claims about the current and proper scope of presidential powers.' For those seeking a survey of the President's constitutional powers, the book amply fits the bill. It thoughtfully considers some classic questions, such as whether the President has a removal power and how the Constitution allocates foreign affairs authority between the President and Congress.After first describing the book's contents, this Review considers a question that permeates Presidential Powers but never receives any systematic treatment: To what extent, and in what way, are presidential powers really the President's? There will always be earnest disputes about whether the Constitution grants the President particular powers. But even as to acknowledged executive authorities, what, if anything, may Congress do to curb controversial exercises of presidential power? For example, some might think it advantageous if Congress could bar or at least erect a check on pardons of donors, administration personnel, and personal friends. Likewise, others might deem it desirable to deny the President the power to nominate judges with life tenure.Notwithstanding the possible benefits of congressional regulation of executive powers, the Constitution's text, structure, and early history reveal that Congress lacks a generic right to reallocate or tamper with presidential powers. To begin with, the vast majority of presidential powers read as if they are absolute grants not subject to congressional control or modification. Perhaps more importantly, the Constitution never grants Congress the generic authority to treat presidential powers as if they were default power, i.e., powers freely exercisable only so long as Congress does not regulate them. Tellingly, the Constitution conspicuously lacks language found in the revolutionary state constitutions that expressly made some or all executive powers subject to legislative regulation. Finally, there are few early assertions that Congress could regulate presidential powers
{"title":"Regulating Presidential Powers","authors":"S. Prakash","doi":"10.2139/SSRN.2857458","DOIUrl":"https://doi.org/10.2139/SSRN.2857458","url":null,"abstract":"Questions about the scope of the President's constitutional powers are in the news today like perhaps no time in recent memory. Splashed across the dailies and leading off the evening news are stories about executive power. Has the Senate invaded the President's power to appoint judges by permitting quasi-filibusters of nominees? Does the President have the right, as Commander-in-Chief, to order the torture of enemy prisoners? May the President instruct state courts to adhere to his reading of a treaty concerning the treatment of arrested foreign nationals?Dean Harold Krent's lively and eminently readable book, Presidential Powers, is nothing if not timely. In 200-plus pages of text, Krent canvasses the President's constitutional powers, focusing on law execution authority, foreign affairs powers, emergency powers, privileges and immunities, and the pardon power. The result is a Corwinesque book that weaves together arguments about text, structure, history, and doctrine to make claims about the current and proper scope of presidential powers.' For those seeking a survey of the President's constitutional powers, the book amply fits the bill. It thoughtfully considers some classic questions, such as whether the President has a removal power and how the Constitution allocates foreign affairs authority between the President and Congress.After first describing the book's contents, this Review considers a question that permeates Presidential Powers but never receives any systematic treatment: To what extent, and in what way, are presidential powers really the President's? There will always be earnest disputes about whether the Constitution grants the President particular powers. But even as to acknowledged executive authorities, what, if anything, may Congress do to curb controversial exercises of presidential power? For example, some might think it advantageous if Congress could bar or at least erect a check on pardons of donors, administration personnel, and personal friends. Likewise, others might deem it desirable to deny the President the power to nominate judges with life tenure.Notwithstanding the possible benefits of congressional regulation of executive powers, the Constitution's text, structure, and early history reveal that Congress lacks a generic right to reallocate or tamper with presidential powers. To begin with, the vast majority of presidential powers read as if they are absolute grants not subject to congressional control or modification. Perhaps more importantly, the Constitution never grants Congress the generic authority to treat presidential powers as if they were default power, i.e., powers freely exercisable only so long as Congress does not regulate them. Tellingly, the Constitution conspicuously lacks language found in the revolutionary state constitutions that expressly made some or all executive powers subject to legislative regulation. Finally, there are few early assertions that Congress could regulate presidential powers","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"91 1","pages":"215"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68394587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Why do black defendant-black victim cases receive by far the lowest rate of death sentences? One hypothesis is that prosecutors devalue black victims' lives and do not regard black-victim murders as seriously as white victim murders. A second hypothesis, one that need not preclude the first, posits that black communities' aversion to the death penalty leads prosecutors to seek it less, or juries to impose it less, in minority communities. The first view represents a version of old-fashioned stereotypical racism. The second hypothesis could be regarded as democracy at work. Communities more hostile to the death penalty elect officials and process criminal cases in a manner that reflects local community values. This Article finds that, in addition to the number of murders, three other demographic factors influence the death sentence rate at the county level. The rate of death sentences decreases as a county's black population percent increases, as a county's per capita income increases, and as a county's homicide rate increases.
{"title":"Death Sentence Rates and County Demographics: An Empirical Study","authors":"T. Eisenberg","doi":"10.2139/SSRN.623228","DOIUrl":"https://doi.org/10.2139/SSRN.623228","url":null,"abstract":"Why do black defendant-black victim cases receive by far the lowest rate of death sentences? One hypothesis is that prosecutors devalue black victims' lives and do not regard black-victim murders as seriously as white victim murders. A second hypothesis, one that need not preclude the first, posits that black communities' aversion to the death penalty leads prosecutors to seek it less, or juries to impose it less, in minority communities. The first view represents a version of old-fashioned stereotypical racism. The second hypothesis could be regarded as democracy at work. Communities more hostile to the death penalty elect officials and process criminal cases in a manner that reflects local community values. This Article finds that, in addition to the number of murders, three other demographic factors influence the death sentence rate at the county level. The rate of death sentences decreases as a county's black population percent increases, as a county's per capita income increases, and as a county's homicide rate increases.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"90 1","pages":"347"},"PeriodicalIF":2.5,"publicationDate":"2004-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67777901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article considers whether infertile taxpayers can deduct their fertility treatment costs as medical expenses under Internal Revenue Code section 213 and whether they should be able to deduct them. Internal Revenue Code section 213 defines medical expenses as "amounts paid-for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body." This definition is interpreted by reference to a baseline of normal biological functioning, which includes reproductive functioning. Most people conceive and bear children without having to incur expenses for fertility treatment. Expenses incurred to approximate the baseline of normal reproductive health are deductible, even if the taxpayer winds up better off, with a child, after the fertility treatment. The medical profession recognizes that infertility is a disease or condition. Infertility is a loss, just as a broken leg is a loss. Fertility treatment costs are thus medical expenses under section 213. In addition, given the existence of the medical expense deduction, taxpayers should be able to deduct the cost of fertility treatments, including IVF, egg donor, and surrogate procedures, under either an "ability-to-pay" or consequentialist normative approach. Reproduction is extremely important to most people. In addition, allowing taxpayers to deduct the costs of fertility treatment will encourage infertile taxpayers to elect the most effective treatment option and reduce the rate of risky multifetal pregnancies. This Article concludes that fertility treatment costs are deductible as medical expenses under current law and should be deductible as medical expenses.
{"title":"Inconceivable? Deducting the costs of fertility treatment.","authors":"Katherine T Pratt","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article considers whether infertile taxpayers can deduct their fertility treatment costs as medical expenses under Internal Revenue Code section 213 and whether they should be able to deduct them. Internal Revenue Code section 213 defines medical expenses as \"amounts paid-for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.\" This definition is interpreted by reference to a baseline of normal biological functioning, which includes reproductive functioning. Most people conceive and bear children without having to incur expenses for fertility treatment. Expenses incurred to approximate the baseline of normal reproductive health are deductible, even if the taxpayer winds up better off, with a child, after the fertility treatment. The medical profession recognizes that infertility is a disease or condition. Infertility is a loss, just as a broken leg is a loss. Fertility treatment costs are thus medical expenses under section 213. In addition, given the existence of the medical expense deduction, taxpayers should be able to deduct the cost of fertility treatments, including IVF, egg donor, and surrogate procedures, under either an \"ability-to-pay\" or consequentialist normative approach. Reproduction is extremely important to most people. In addition, allowing taxpayers to deduct the costs of fertility treatment will encourage infertile taxpayers to elect the most effective treatment option and reduce the rate of risky multifetal pregnancies. This Article concludes that fertility treatment costs are deductible as medical expenses under current law and should be deductible as medical expenses.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 5","pages":"1121-200"},"PeriodicalIF":2.5,"publicationDate":"2004-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40882101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article considers whether infertile taxpayers can deduct their fertility treatment costs as medical expenses under Internal Revenue Code section 213 and whether they should be able to deduct them. Internal Revenue Code section 213 defines medical expenses as "amounts paid-for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body." This definition is interpreted by reference to a baseline of normal biological functioning, which includes reproductive functioning. Most people conceive and bear children without having to incur expenses for fertility treatment. Expenses incurred to approximate the baseline of normal reproductive health are deductible, even if the taxpayer winds up better off, with a child, after the fertility treatment. The medical profession recognizes that infertility is a disease or condition. Infertility is a loss, just as a broken leg is a loss. Fertility treatment costs are thus medical expenses under section 213. In addition, given the existence of the medical expense deduction, taxpayers should be able to deduct the cost of fertility treatments, including IVF, egg donor, and surrogate procedures, under either an "ability-to-pay" or consequentialist normative approach. Reproduction is extremely important to most people. In addition, allowing taxpayers to deduct the costs of fertility treatment will encourage infertile taxpayers to elect the most effective treatment option and reduce the rate of risky multifetal pregnancies. This Article concludes that fertility treatment costs are deductible as medical expenses under current law and should be deductible as medical expenses.
{"title":"Inconceivable? Deducting the costs of fertility treatment.","authors":"K. Pratt","doi":"10.2139/ssrn.456960","DOIUrl":"https://doi.org/10.2139/ssrn.456960","url":null,"abstract":"This Article considers whether infertile taxpayers can deduct their fertility treatment costs as medical expenses under Internal Revenue Code section 213 and whether they should be able to deduct them. Internal Revenue Code section 213 defines medical expenses as \"amounts paid-for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.\" This definition is interpreted by reference to a baseline of normal biological functioning, which includes reproductive functioning. Most people conceive and bear children without having to incur expenses for fertility treatment. Expenses incurred to approximate the baseline of normal reproductive health are deductible, even if the taxpayer winds up better off, with a child, after the fertility treatment. The medical profession recognizes that infertility is a disease or condition. Infertility is a loss, just as a broken leg is a loss. Fertility treatment costs are thus medical expenses under section 213. In addition, given the existence of the medical expense deduction, taxpayers should be able to deduct the cost of fertility treatments, including IVF, egg donor, and surrogate procedures, under either an \"ability-to-pay\" or consequentialist normative approach. Reproduction is extremely important to most people. In addition, allowing taxpayers to deduct the costs of fertility treatment will encourage infertile taxpayers to elect the most effective treatment option and reduce the rate of risky multifetal pregnancies. This Article concludes that fertility treatment costs are deductible as medical expenses under current law and should be deductible as medical expenses.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 5 1","pages":"1121-200"},"PeriodicalIF":2.5,"publicationDate":"2004-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735994","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A modest proposal: toward improved access to biotechnology research tools by implementing a broad experimental use exception.","authors":"David C Hoffman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 4","pages":"993-1043"},"PeriodicalIF":2.5,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24546003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm. This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the Harvard Medical Practice Study, shows that the quality of health care improves as the risk of being sued rises; none of it shows that malpractice lawsuits cause the quality of health care to decline. The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded. The central causes of the high error rates that persist in the health care sector appear to be providers' defective incentives and professional norms. Providers lose money when quality improves, and their norms discourage the creation of non-punitive working environments in which efforts to improve quality can flourish. The business case for quality is missing, and providers' attitudes are antithetical to quality improvement. The tort system's major deficiency is its failure to subject providers to sufficient economic pressure to overcome these impediments. The cause of this shortcoming is the rarity with which injured patients assert legal claims.
医疗事故诉讼鼓励提供者隐瞒错误，从而阻碍了提高医疗质量的努力，这是患者安全倡导者和学者们的传统观点。它还为目前在州和联邦一级进行的减少医疗事故暴露的努力提供了规范基础。包括美国医学会(American Medical Association)在内的团体迫切要求进行侵权改革，他们认为，当医生和其他医疗服务提供者免于承担责任时，患者将得到更好的保护，免受伤害。本文对医疗事故暴露与医疗质量之间的关系进行了实证研究。其中一些证据，如哈佛医学实践研究(Harvard Medical Practice Study)表明，随着被起诉的风险上升，医疗保健质量也会提高;没有一项研究表明，医疗事故诉讼会导致医疗保健质量下降。人们普遍认为，对医疗事故责任的恐惧阻碍了提高卫生保健服务系统可靠性的努力，这是没有根据的。医疗保健部门持续存在高错误率的主要原因似乎是提供者的激励机制和专业规范存在缺陷。当质量提高时，供应商就会赔钱，而且他们的规范阻碍了非惩罚性工作环境的创造，而在这种环境中，提高质量的努力可能会蓬勃发展。缺少质量的商业案例，提供者的态度与质量改进是对立的。侵权制度的主要缺陷在于未能使提供者承受足够的经济压力以克服这些障碍。造成这一缺陷的原因是很少有受伤的病人提出法律要求。
{"title":"The poor state of health care quality in the U.S.: is malpractice liability part of the problem or part of the solution?","authors":"D. Hyman, C. Silver","doi":"10.2139/SSRN.526762","DOIUrl":"https://doi.org/10.2139/SSRN.526762","url":null,"abstract":"The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm. This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the Harvard Medical Practice Study, shows that the quality of health care improves as the risk of being sued rises; none of it shows that malpractice lawsuits cause the quality of health care to decline. The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded. The central causes of the high error rates that persist in the health care sector appear to be providers' defective incentives and professional norms. Providers lose money when quality improves, and their norms discourage the creation of non-punitive working environments in which efforts to improve quality can flourish. The business case for quality is missing, and providers' attitudes are antithetical to quality improvement. The tort system's major deficiency is its failure to subject providers to sufficient economic pressure to overcome these impediments. The cause of this shortcoming is the rarity with which injured patients assert legal claims.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"90 4 1","pages":"893-993"},"PeriodicalIF":2.5,"publicationDate":"2004-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.526762","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67757170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Burning the candle at both ends, and there is nothing left for proof: the Americans with Disabilities Act's disservice to persons with mental illness.","authors":"Michelle Parikh","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 3","pages":"721-62"},"PeriodicalIF":2.5,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24494196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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