Protecting Ohio's Children: Ohio Juvenile Court Jurisdiction to Prevent Nonparty Interference in the Protection of the Best Interest of a Child

Ohio Rule of Juvenile Procedure 2(Y) allows juvenile courts to do what other courts cannot: designate additional parties to an action, allowing juvenile courts to better accomplish their statutory purpose of pursuing the best interests of children. However, sometimes this can lead to confusion about juvenile courts’ actions to protect children, especially when courts invoke Rule 2(Y) to stop interference with proceedings. This article will examine the historical foundations of Ohio's juvenile courts, the unique authority that they possess, and the conflicts that can arise due to interference with juvenile court proceedings. Ohio's juvenile courts have unique authority, and they can use that authority in a way that does not conflict with constitutional rights, while still working to protect the interests of children.     

The pregnant woman and the good Samaritan: can a woman have a duty to undergo a caesarean section?

Although a pregnant woman can now refuse any medical treatment needed by the fetus, the Court of Appeal has acknowledged that ethical dilemmas remain, adverting to the inappropriateness of legal compulsion of presumed moral duties in this context. This leaves the impression of an uncomfortable split between the ethics and the law. The notion of a pregnant woman refusing medical treatment needed by the fetus is troubling and it helps little simply to assert that she has a legal right to do so. At the same time, the idea that a pregnant woman fails in her moral duty unless she accepts any recommended treatment or surgery--however great the burden--is also not without difficulty. This article seeks to find a way between these two somewhat polarized positions by arguing that, instead of being a question primarily about whether legally to enforce moral obligations, the 'maternal-fetal conflict' begins with previously unrecognized difficulties in determining when a woman's prima facie moral rights invoked in the treatment context should 'give way' to the interests of the fetus. This difficulty is mirrored within the law. Thus, how can we tell when a pregnant woman has the moral or legal duty to submit to a caesarean section? Seen in this way, the conflict is a problem which lies at the interface between moral and legal rights and duties, showing that there are important conceptual links between the ethics and the law. Against this background, this article explores the limits of a pregnant woman's right to bodily integrity by focusing upon the idea of her moral duty to aid the fetus through her body. Here we find difficulties in determining the existence and extent of this somewhat extraordinary duty. Such a duty is contrasted with both negative and positive duties toward others in the course of 'general conduct.' Attention to the social context of pregnancy and the refusal of treatment within this is also instructive. Overall, the purpose is to foster understanding and acceptance of the current legal position.     

Court-ordered obstetrical intervention and the rights of a pregnant woman

Cases of court-ordered obstetrical interventions are not common but have caused great controversy in the United States, Canada and Britain. At stake for the pregnant woman is her right to have autonomy over her body and control over the medical treatment that she receives. However, with growing medical knowledge of the fetal condition, there is a case to suggest that the fetus should have some rights in cases where the decision of the pregnant woman to refuse treatment would cause severe harm to the fetus. The article argues that though the case against intervention is extremely strong, court-ordered obstetrical interventions should still be possible in extreme cases.     

Dealing with cryopreserved embryos upon divorce: a contractual approach aimed at preserving party expectations

The development of assisted reproductive technologies, including cryopreservation, or freezing, of embryos created through in vitro fertilization, has given rise to complex legal questions. Because cryopreservation permits indefinite storage of embryos, if couples fail to specify disposition directions, they may disagree regarding embryo treatment upon the occurrence of contingencies such as divorce. Few courts have resolved such disputes, and those that have appear to uphold the rights of the party seeking to prevent implantation in the absence of a written agreement specifying otherwise. In this Comment, Sara Petersen proposes that courts should draw upon contract law principles in determining whether the parties to such conflicts actually reached agreements regarding embryo disposition in the event of divorce. After analyzing existing precedent, the author assesses proposed approaches for deciding which party's interests should prevail and concludes that these methods are inherently ineffective. She then argues that, in an effort to preserve party expectations and to provide fair results, courts instead should examine whether the parties executed binding contracts or achieved mutual assent. Furthermore, she suggests that couples undergoing cryopreservation will be more likely to contemplate and to provide for various outcomes if they know that courts will look at evidence of their conversations and thought processes prior to cryopreserving their excess embryos.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

Mired in Confusion: Nominative Fair Use in Trademark Law and Freedom of Expression

Trademark law, like other areas of intellectual property law, frequently conflicts with First Amendment interests in various ways. One particularly critical intersection between trademark and free expression is the nominative fair use doctrine, which was created to ameliorate this conflict to some degree. This article explores the history of nominative fair use and argues that the test is inadequate to the task of protecting First Amendment values within trademark law. The article then analyzes an arguably better approach, the Rogers test, and argues that courts should look to Rogers as a superior means of preserving expressive values in trademark doctrine.     

The emergence of maternal-fetal conflict policies

George Washington University Medical Center's Policy on decisionmaking by pregnant patients is being widely circulated by the ACLU; copies of the Policy can be obtained by calling the American Civil Liberties Union Reproductive Freedom Project. There is, of course, much disagreement over the details of the Policy; not everyone will agree with its underlying philosophy favoring maternal rights. Nevertheless, there does seem to be a consensus that wherever possible these conflicts should be resolved in accordance with previously adopted policies rather than by the courts on an ad hoc basis. Had the Policy been in place in 1987, the Carder case would probably not have been submitted to a judge in the first place, nor would Angela Carder have been forced to undergo a Caesarean section. All hospitals should consider adopting a maternal-fetal conflict policy, and those that do so should be aware of the George Washington University Medical Center Policy, whether or not they agree with its provisions. Whatever policy each hospital ultimately develops should be integrated with decisionmaking and informed consent policies already in place. The formulation and implementation of such a policy, reflecting the hospital's legal and ethical obligations to its pregnant patients, will go a long way towards preventing unnecessary resort to the courts.     

Rights and Individual Well-Being

Abstract
This article challenges the view permeating much philosophical thought that the primacy of individual rights represents the individual's standpoint against the public good or against the requirements of others generally. The author explicates the underlying features of our common culture contending that the conflict between individual and general good as being central to rights misconstrues the surface features of rights. The range and nature of common goods determine the options available to individuals and define their well-being. The relative absence of conflict of interests and the background of a common tradition make the courts a suitable forum for the conduct of this branch of politics.     

Withdrawal of life-sustaining treatment from a patient in a minimally conscious state

This column reports on a recent decision, the first in England in which a court was asked to authorise the withdrawal of artificial nutrition and hydration from a patient in a "minimally conscious state". Since the seminal decision in 1993 in Airedale NHS Trust v Bland [1993] AC 789, in which the House of Lords authorised withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state, the relatively new diagnosis of a "minimally conscious state" has been recognised. In deciding whether it was in the patient's best interests that artificial nutrition and hydration be withdrawn and withheld, the court made a key legal determination, with precedential effect, as to whether the so-called "balance sheet" approach to determining a patient's best interests, as opposed to the (discredited) "futility" principle, applies to a patient in a minimally conscious state. The merit of the former approach is that it forces explicit consideration of quality-of-life assessments in favour of and against withdrawing life-sustaining treatment. A significant pitfall of the English position, as it is currently developing, is the premium it places on accurate diagnosis, whether of vegetative state or minimally conscious state. These issues will have to be faced sooner or later by Australasian courts.     

CONFLICTING ROLES IN CHILD CUSTODY MEDIATION

This article will first discuss the conflict in the mediator's role as a neutral and impartial third party with no interest in the outcome and his or her role as guardian or advocate for the best interests of the child. That discussion will define terms, consider the legal standard for the best interests of the child as it is used by the courts, and lay out how the legal standard is problematic in general but even more so for mediators. Part 3 will discuss options for mediators attempting to resolve this conflict by looking at a continuum of alternatives, using examples of opening statements that illustrate positions ranging from extreme nonintervention to complete inte mention. An assessment follows each example.     

Comments on Illegal War and Illegal Conduct: Are the Two Related?

This article examines whether there is a link between the legality or otherwise of an armed conflict under jus ad bellum and the subsequent conduct of the campaign under jus in bello. This is done by comparing two conflicts where the legality was not in serious dispute, the Falklands/Malvinas conflict and the Iraq War 1990–1991, and three where the legality has been questioned, Kosovo 1999, the ‘global war on terror’ and the Iraq War 2003. In looking for a common link, the author is drawn away from concerns over the jus ad bellum to doubts over the content of the relevant law governing the conduct of hostilities. Uncertainties in the law have occurred both from the extension to non-international armed conflict of ‘Hague law’, traditionally applicable only in international armed conflicts, and the overlap between human rights law and the law of armed conflict. The author concludes that there is a danger that the balance between military necessity and humanity may be disturbed so that the law will become impracticable in the cauldron of conflict to the detriment of all, soldier and civilian alike.

     

'Food for Thought': Reconciling European Risks and Traditional Ways of Life

The European Food Safety Authority marks a new stage in European Union governance. It has no direct regulatory powers, but is entrusted with developing norms of food safety, which are to inform the material content of EC food law. The hope is that its independence and expertise will restore popular confidence both in the EU and in the food we eat. The irreducible nature of lay-expert conflicts about hazard suggests that a more likely scenario is that such disputes become recast as opposition to EC law. Such conflict is most likely to manifest itself in national courts through challenges to or non-compliance with EC law. The current principles for resolution of such conflicts are hopelessly outmoded. The article, therefore, argues for a constitutional resettlement, which sets out principles germane to the nature of the EC regime, namely that of a multi-level regulatory State. It argues for a new defence of regulatory balance. Individuals could argue for the disapplication of EC norms where these violated a valued local regime which had given consideration to the issues raised in the EC legislation and whose positive value to its subjects exceeded its negative impact on the interests protected by the EC legislation.     

Precommitment stategies [sic] for disposition of frozen embryos

The question of whether to enforce agreements to implant frozen embryos after divorce has become a major concern for the 300 clinics and thousands of couples who use infertility services every year. Although courts in New York and Tennessee support enforcement, recent decisions by appellate courts in Massachusetts and New Jersey have refused to enforce such agreements on the ground that courts should not force people to reproduce. This article analyzes conflicts over enforcement of agreements for disposition of frozen embryos in terms of the precommitment strategies that persons use to plan their lives. It shows that refusal to enforce contracts for frozen embryos is unfair to the parties who relied on them in undertaking invasive infertility treatments, and possibly unconstitutional. It also addresses the extent to which precommitments for rearing rights and duties in resulting children should be enforced, if agreements to implant embryos are recognized.     

ASSESSING AND MANAGING ALLEGATIONS OF CHILD SEXUAL ABUSE

This article examines the procedures involved in the assessment and management of allegations of child sexual abuse in courts exercising custody and access jurisdictions. The author discusses the various options available to the court when confronted with such allegations, noting that, in the contex: of access disputes, the issue for the court is not whether a parent has sexually abused a child but whether, in all the circumstances of the case, access should take place or custody should change. In all matters involving access between parents and children, the overriding principle is the paramountcy of the welfare of the child. It is also argued that supervised access, although an increasingly popular alternative for the court when faced with allegations of abuse, is problematic and may not be in the best interests of the child. The author suggests that the emphasis must be on children's rights find parental responsibilities.     

Accommodating Children's Rights in a Post Human Rights Act Era

This article considers why so little case law currently acknowledges that children have recognisable rights under the European Convention on Human Rights and argues that the family courts are not meeting the demands of the Human Rights Act 1998 in this regard. It suggests that a reinterpretation of the 'paramountcy principle' in the Children Act 1989 should be accompanied by a radically different judicial approach to evidence relating to children's best interests. The article considers the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment. It further argues that the courts should call on the substantial body of rights jurisprudence to provide legal and moral support for this revised approach.     

CHILD SUPPORT GUIDELINES

From a conflict resolution perspective, it is clear why the child support guidelines are not going to reduce the adequacy and compliance gaps in child support payment conflicts between parents. As it stands, the conflict over equally sharing child support is destructive rather than positive. The guidelines do not reframe the conflict for the parents, enabling them to believe the interests of children are more important than their own interests to win the child support battle. To transform conflict from destructive to positive, the elements of conflict–expression of the conflict, scarce resources and rewards, and interdependency–must be transformed. It is argued that the guidelines do not transform the conflict but facilitate it. Courts and attorneys are also significant players in the child support conflict.     

Nigeria: HIV-positive woman launches suit after being denied treatment

A 39-year-old woman who was denied treatment at a hospital in Lagos simply because she is HIV-positive is fighting back through the courts. The Center for the Right to Health has filed a lawsuit on her behalf, seeking damages as well as an injection to prevent further discrimination against people with HIV/AIDS who seek treatment.     

The impact of medical technology on the pregnant woman's right to privacy

It has been suggested that the advance of science and technology in the West has changed both the relationship of man to nature and of man to man. With regard to human reproduction, science and technology in medicine may certainly change the relationship of man to nature and of man to man, but also the concept of what it means to be human. Efforts must be taken to guarantee the rights of all humans. The author explores developing reproductive medical technology to consider how it may change our concept of humanness and how that change may be accommodated, encouraged, or impeded by the relationship between the government and its pregnant citizens as defined by the US Constitution and the right to privacy. Sections discuss the Constitution at the beginning of life; sterilization and the right to procreate; contraception, abortion, and the right not to procreate; and surrogacy. The author also discusses constitutional issues when the interests of a pregnant woman conflict with those of the fetus in terms of fetal surgery, forced cesarean-section cases, and the fetal abuse case of Pamela Monson Stewart.     

Assisted suicide under the European Convention on Human Rights: a critique

In a high profile case, a terminally ill woman, Diane Pretty, challenged the United Kingdom prohibition on assisted suicide as incompatible with certain fundamental rights which are guaranteed under the European Convention on Human Rights. Mrs Pretty's battle was ultimately unsuccessful, with a total of three courts and 15 judges ruling against her. Such unanimity of opinion might well be thought to represent the coup de grace for arguments about the right to assistance in death under European human rights law. However, in this article it is suggested that, in limited circumstances, such assistance might yet still be possible under the Constitution.     

Resisting ‘progressive’ carceral expansion: lessons for abolitionists from anti-colonial resistance

This article documents a government-led strategy to more closely integrate policing with community-based ‘crime prevention’ programming in the city of Winnipeg, Manitoba, Canada. These initiatives have targeted neighborhoods with large Indigenous populations. In this article I illustrate how community-level conflicts over responses to ‘crime’ are also sites of settler colonial conflict, and how settler colonial governance is reproduced and resisted through the governance of crime. Interviews with politicians, policy-makers, bureaucrats in the crime prevention branch of the provincial government, and directors and employees at community-based organizations suggest that the pursuit of the government strategy of integrated crime prevention and suppression has been more a project of attempting to ‘manage’ urban Indigenous people than serve their interests. As a contribution to abolitionist thought and theory, this article profiles sites of conflict between community police and community-based organizations over definitions of the ‘crime’ problem in city-center Winnipeg. These examples highlight a kinship between carceral abolitionist and decolonial politics.