Criminalization,Legitimacy, and Welfare

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.     

Giving until it hurts: prisoners are not the answer to the national organ shortage

This Note argues that prisoners, whether executed or living, should not become organ donors. The introduction acknowledges the shortage of transplantable organs in the United States and the steps that have been taken to ameliorate the crisis. Part I discusses the procurement of organs from executed prisoners, beginning with a brief examination of China, a country where this type of procurement is routinely practiced. Part I also examines organ procurement legislation pertaining to executed prisoners. Finally, Part I asserts the reasons that prisoners should not become donors, including the dead donor rule, the ban against physicians as executioners, the Oath of Hippocrates, the risk of transmissible diseases, and the negative perception that would result if organ procurement was tied to executions. Part II of this Note discusses prisoners donating their organs in return for mitigated sentences. Part II then argues that this practice should not be adopted because of the lack of informed consent and voluntary choice. Finally, Part III of this Note introduces potential solutions to the possibility of maintaining a voluntary system, moving to a presumed consent system, and using financial inducements to create a larger supply of transplantable organs.     

Reallocating liability to medical staff review committee members: a response to the hospital corporate liability doctrine

Under the doctrine of hospital corporate liability, the hospital governing board bears the responsibility for detecting the incompetence of its staff physicians. Since hospital governing boards are generally composed of lay community members, they lack the expertise to evaluate the clinical competence of their staff. Therefore, they must delegate their screening responsibilities to medical staff review committees. After analyzing the development of hospital corporate liability doctrine, this Note examines the respective policing capabilities of review committees and the governing board. The Note contends that the board should not be held liable for aspects of the policing process which it is incapable of controlling. The Note concludes that, given their superior ability to evaluate clinical competency, staff review committees should shoulder the responsibility for the clinical aspects of staff evaluation, leaving remaining aspects to the hospital governing board. The Note proposes that courts should recognize a cause of action for negligence against medical staff review committee members in order to upgrade the effective policing of the medical profession.     

On the commodification of the black female body: the critical implications of the alienability of fetal tissue

Recent scientific experimentation has revealed that fetal tissue yielded from abortions has remarkable therapeutic value. This Note posits that the demand for fetal tissue likely will expand to the point where the current supply no longer satisfies it. Therefore, in order to obtain tissue from women who would not otherwise donate their abortuses, should research organizations, pharmaceutical companies, and doctors be allowed to offer women a "financial incentive" for their fetal tissue? That is, should women be allowed to sell their fetal tissue? This Note explores the question from a Critical Race Theory perspective. It analyzes the impact that a market in fetal tissue will have on Black women, who are more likely to participate in such a market due to their precarious economic situation, their higher abortion rate, and the effects of internalized oppression. The Note concludes that because Black women will be disproportionately exploited, as well as disenfranchised from the benefits produced by a market in fetal tissue, fetal tissue should not be made market alienable.     

The doctor will e-mail you now: physicians' use of telemedicine to treat patients over the Internet

This article examines the problems currently associated with the practice of telemedicine and suggests that the best solution for this particular field of medicine is a national standard of care. This article also suggests that the Food and Drug Administration's (FDA) current functions are easily expandable to the telemedicine context; therefore, the agency should regulate the implementation of such a standard in the telemedicine field. This article proposes that the FDA use medical practice guidelines in developing the applicable standard. Other agencies, such as the American Medical Association (AMA) and other website alliances, could also aid the FDA in implementing this standard because of their experience in setting such guidelines for the traditional medical context. Finally, this article suggests that in implementing the national standard of care, the FDA should increase the standard of care that telephysicians, as compared to traditional physicians, owe their patients because of the risks associated with treating patients in the absence of hands-on consultations. By implementing a national standard of care, problems currently associated with telemedicine will be resolved, and physicians and patients will have more confidence in telemedicine.     

刑法学视域下的克隆人及其立法

克隆人是现代生命科技发展带给人类社会的一个挑战。从技术应用的目的上看,克隆可以被划分为治疗性克隆与生殖性克隆。在有关克隆人是否具有犯罪性以及刑法应否禁止克隆人的问题上,存在着"肯定论"与"否定论"两种截然相反的观点。站在刑法的视域下,生殖性克隆人是一种完全不同于治疗性克隆人的行为,它无法摆脱伦理上的非难性,已经超出了社会可承受的范围,其本质是一种反社会的犯罪行为,对于这种行为,刑法应当将其入罪化,并配设适宜的刑事责任。当前我国现行立法中已经对生殖性克隆人作出了明令禁止,但却未就从事生殖性克隆人研究的刑事责任作出任何规定,也未出台有关克隆技术规范的专门立法。为此,需要制定一部《克隆技术管理法》,并修改现行刑法的规定,增设"非法从事生殖性人体克隆研究罪"。     

Two Objections to Yaffe on the Criminalization of Attempts

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle.     

Protecting the rights of the developmentally disabled: alternatives to the existing statutory and regulatory scheme.

The Developmentally Disabled Assistance and Bill of Rights Act of 1975 and related HEW regulations require each state to establish a system for the protection and advocacy of the rights of developmentally disabled persons as a condition to receiving specified federal funds. This Note contends that, under the present statutory and regulatory scheme, states and governors have broad powers to interfere with the proper functioning of protection and advocacy systems. The Note examines the principal legal remedies, contractual and constitutional, presently available to parties interested in reducing or eliminating such interference, and concludes that such remedies are ineffectual. Instead, the author proposes, the HEW regulations should be revised to strengthen the autonomy of protection and advocacy systems or, alternatively, Congress should amend the 1975 Act to provide for federal administration of such systems.     

Ethics and AIDS: a summary of the law and a critical analysis of the individual physician's ethical duty to treat

Persons afflicted with acquired immune deficiency syndrome (AIDS) or its preceding medical conditions face a potential problem with assured access to basic threshold medical care. Subject to certain limitations, there is no guarantee that a physician will fulfill the health care needs of any population of patients. Individuals with AIDS, thus, have a considerable interest in the development of a duty on behalf of physicians to provide treatment. This Note first highlights the limits of the legal duty to treat. It then examines the theoretical impetus propelling an ethical duty to treat. The Note concludes that the grounds for imposing an ethical duty on physicians are too weak to support that result, but the creation of an AIDS-specific legal duty is a viable alternative.     

The Limits of the Harm Principle

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in (regardless of its harmful effects) and conduct that might well be criminalized (though it is not harmful). A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights.     

为什么不能将性贿赂犯罪化?

近年来有不少学者和人大代表仅从性贿赂的危害性角度提议性贿赂入罪,是对刑事立法规律的不理解所导致的。性贿赂立法在国际反腐败公约中没有要求,在国外立法中没有先例,在我国不能将性贿赂入罪,因为将性贿赂入罪会因为认定上的困难而导致司法上的混乱。不将性贿赂犯罪化,但可以通过其他方式监督性贿赂、防止官员腐败。     

内幕交易犯罪识别路径研究:从发行人许可的“内幕交易”谈起

近年来,部分美国学者主张允许发行人许可的内幕交易,在我国执法环境中,上述行为大概率将被认定为具有行政违法性,但是否当然地引发对当事人刑事责任的追究则有待商榷。本文对我国内幕交易犯罪的法益识别理论进行了反思,主张根据以信义义务为基础的反欺诈理论对内幕交易中值得刑法保护的法益加以甄别。司法机关应当对内幕交易案件进行独立判断,在发行人许可并对特定内幕信息知情人参与交易的行为及时予以披露的情形当中,即便在超额收益与行为人所具备信息优势地位间存在可被证明的因果关系,因不存在对发行人和股东的欺诈,仍应考虑非犯罪化处理的可能。借此希望为司法实践提供一种有效、稳定且克制的裁判路径,缓解当前由行政机关把握内幕交易"入罪"节奏的实践难题。     

过失危险犯基本问题研究

我国刑法中的妨害传染病防治罪、妨害国境卫生检疫罪以及过失损坏广播电信设施、公用电信设施罪属于过失危险犯的立法例。对于过失危险行为应当予以适度的犯罪化。我国关于过失危险犯的立法有进一步完善的必要。     

The insanity defense: effects of abolition unsupported by a moral consensus

The insanity defense reflects the moral judgment that some criminal defendants do not deserve criminal sanctions because of mental incapacity. This Note examines the alternative formulations, such as guilty but mentally ill and diminished responsibility, that some states have enacted in the face of growing controversy over the insanity defense. It observes that the alternatives, if used in lieu of the insanity defense, distort the criminal law and do not comport with the legal doctrine of responsibility, which eschews punishing mentally ill defendants. The Note concludes that the insanity defense should not be abolished unless the moral consensus changes regarding the criminal responsibility of mentally ill defendants.     

Research malpractice and the issue of incidental findings.

Human subject research involving brain imaging is likely to reveal significant incidental findings of abnormal brain morphology. Because of this fact and because of the fiduciary relationship between researcher and subject, board-certified or board-eligible radiologists should review the scans to look for any abnormality, the scans should be conducted in accordance with standard medical practice for reviewing the clinical status of the whole brain, and the informed consent process should disclose the possibility that incidental findings may be revealed and what consequences will follow. In the event such findings are revealed, qualified physicians should explain to the subject the significance of the findings and the alternatives available.     

The Need for a Stronger Definition: Recognizing Abandonment as a form of Elder Abuse Across the United States

Elder abuse is a growing public health problem in the United States and statistics show that each year, hundreds of thousands of elders are abused in some manner. This Note discusses elder abuse while focusing specifically on the occurrence of elder abandonment and how the majority of states do not recognize elder abandonment as a form of elder abuse in their statutes. Moreover, this Note proposes a model statute to be adopted by every state in an effort for elder abandonment to become more widely reported. Elder abandonment is an unfortunate phenomenon and those who contribute to elder abandonment should face criminal liability similar to those abusers who engage in elder neglect or other types of elder abuse. Furthermore, this Note emphasizes that there should be a greater focus on how caregivers can seek assistance in order to prevent elder abuse in the United States.     

A critique of the motivational analysis in wrongful conception cases

Most states now recognize a tort cause of action for wrongful conception, typically resulting from a failed sterilization. States differ, however, in determining whether damages should be awarded for child-rearing expenses and what factors juries can consider in setting such damage awards. This Note argues that one commonly used factor, the parents' motivation for selecting sterilization, is irrelevant and leads to inequitable results. Since the right to use contraception is constitutionally protected, the choice to sterilize in order to avoid financial burdens associated with child-rearing should not be given preferential treatment to sterilizations motivated by concerns of genetic defects or for the mother's health.     

Freestanding emergency centers: regulation and reimbursement

The freestanding emergency center, which combines the functions of a doctor's office and a hospital emergency room, has emerged as a new provider of health care. These centers have generated considerable controversy over their role in the health care market. Proponents argue that freestanding emergency centers reduce costs by providing care in a more efficient manner and cause other health care providers such as hospital emergency rooms to reduce costs and improve service. Opponents argue that the centers create an additional layer of health care which duplicates existing services and increases total health care costs. This Note examines the controversial issues of licensure, regulation and reimbursement. The Note concludes that freestanding emergency centers can help to reduce health care costs and discusses the steps that should be taken to aid centers in achieving this goal. reduce health care costs and discusses the steps that should be taken to     

Sexual abuse by psychotherapists: the call for a uniform criminal statute.

Recent surveys show an alarming rate of sexual exploitation of patients by psychotherapists. As such conduct often falls outside the scope of rape, which allows a defense of consent, the psychotherapist is not prosecuted. Although all sexual contact between therapist and patient is prohibited by codes of professional ethics, the licensing boards that enforce these codes do not possess adequate power to deter this behavior. Further, professional review boards have absolutely no authority over unlicensed therapists who sexually abuse their patients. As a result, licensed therapists who have been censured in one state may practice as unlicensed therapists in another state and continue to sexually abuse patients. The only effective deterrent would be a uniform statute, adopted in all states, criminalizing this specific abuse of the unique therapist-patient relationship. Such a statute should include unlicensed therapists as potential offenders and consent to sexual contact should not be a defense. The statute also should provide for enhanced efforts to inform and protect victims. This Note first examines six of the nine criminal statutes that currently exist in order to show the full range of provisions presently in force to deter this conduct. This Note then proposes model provisions for a uniform statute.     

No Offense! On the Offense Principle and Some New Challenges

A central aim within criminal justice ethics is to give a plausible justification concerning which type of acts ought to be criminalized by the state. One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm Principle.