Access to justice: is legal services regulation blocking the path?

Abstract

High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America's access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.     

A review of the CDM literature: from fine-tuning to critical scrutiny?

As negotiations on the post-2012 climate regime are now taking off, it is time to look back and assess the experiences of the clean development mechanism (CDM) to this date. The CDM has been subject to extensive discussion in academic literature during the last few years, and this article reviews that literature in order to sum up its main themes. A common assessment is that the current structure of the CDM leads to a focus on cheap emissions reductions at the expense of sustainable development benefits for the host countries. Recently, the questionable additionality of many CDM projects has become a central issue. The article further argues that whereas a substantial body of work exists on the CDM, this work is mainly preoccupied with a ‘fine-tuning’ of the mechanism. As the CDM now becomes increasingly institutionalized, scholars should also take a step back and study the CDM in a more theoretically oriented way.

Regulation of legal services in the e-world: a need to short circuit hot spots in ethics and novel practices?

This paper examines the professional and regulatory implications for legal practices of a rapidly evolving legal services marketplace shaped by new technologies and e-spaces. The paper focuses on three burgeoning areas in the delivery of legal services: (i) legal outsourcing; (ii) virtual law firms; and (iii) use of social media networking. The authors examine how Australian legal practitioners are utilising these new practices and technologies and the ethical implications of their use. The paper argues that the current regulatory framework in Australia does not adequately address the challenges and concerns raised by an increasingly borderless and e-based legal services market and thus calls for Australian legal regulators to remedy this deficiency as a matter of priority.     

The fox and the grapes: is real reform beyond reach in the United States?

As the challenges of maintaining (or, in the US case, attaining) affordable universal coverage multiply, the debate about what constitutes "real" reform intensifies in Western health care systems. The reality of reform, however, lies in the eyes of myriad beholders who variously enshrine consumer responsibility, changes in payment systems, reorganization, and other strategies -- or some encompassing combination of all of the above -- as the essential ingredient(s). This debate, increasingly informed by the agendas of health services researchers and health policy analysts, arguably serves as much or more to becloud as to clarify the practical options policy makers face and remains severely imbalanced with respect to the institutional sectors on which it concentrates, the fields of knowledge on which it draws, and the roles it envisions for markets and the state.     

Donation of 'spare' fresh or frozen embryos to research: who decides that an embryo is 'spare' and how can we enhance the quality and protect the validity of consent?

This paper analyses elements of the legal process of consent to the donation of 'spare' embryos to research, including stem-cell research, and makes a recommendation intended to enhance the quality of that process, including on occasion by guarding against the invalidity of such consent. This is important in its own right and also so as to maximise the reproductive treatment options of couples engaged in in vitro fertilisation (IVF) treatment and to avoid possible harms to them. In Part 1, with reference to qualitative data from three UK IVF clinics, we explore the often delicate and contingent nature of what comes to be, for legal purposes, a 'spare' embryo. The way in which an embryo becomes 'spare', with its implications for the process of consent to donation to research, is not addressed in the relevant reports relating to or codes of practice governing the donation of embryos to research, which assume an unproblematic notion of the 'spare' embryo. Significantly, our analysis demonstrates that there is an important and previously unrecognised first stage in the donation of a 'spare' embryo to research, namely: consent to an embryo being 'spare' and so, at the same time, to its disuse in treatment. This is not explicitly covered by the Human Fertilisation and Embryology (HFE) Act 1990, as amended by the HFE Act 2008. Having identified this important initial stage in the process of consent to the donation of a 'spare' embryo to research in conclusion to Part 1, in Part 2 we analyse the idea of consent to an embryo's disuse in treatment on the basis that it is 'spare' with reference to the legal elements of consent, namely information as to nature and purpose, capacity, and voluntariness. We argue that there are in fact three related consent processes in play, of which the principal one concerns consent to an embryo's disuse in treatment. If the quality of this first consent is compromised, in turn this will impact on the quality of the consent to the donation of that 'spare' embryo to research, followed by the quality of consent to future cycles of assisted reproduction treatment in the event that these are needed as a result of a donation decision. The analysis overall is of central relevance to the debate as to whether, and if so when, it should be permissible to request the donation of fresh embryos for research, as opposed to those that have been frozen and, for instance, have reached the end of their statutory storage term. This has a particular bearing on the donation of embryos to stem-cell research since there is a debate as to whether fresh embryos are most useful for this.     

Revisiting the legal standards that govern requests to sterilize profoundly incompetent children: in light of the "Ashley Treatment," is a new standard appropriate?

This Note discusses the recent controversy surrounding a six-year-old girl named Ashley, whose parents chose to purposefully stunt her growth and remove her reproductive organs for nonmedical reasons. A federal investigation determined that Ashley's rights had been violated because doctors performed the procedure, now referred to as the "Ashley Treatment," without first obtaining a court order. However, the investigation did not make any conclusions regarding whether the "Ashley Treatment" could present a legally permissible treatment option in the future. After discussing the constitutional rights that the "Ashley Treatment" implicates and the current legal standards in place, this Note examines how courts have applied these legal standards to cases involving extreme requests. Drawing upon legal commentators, this Note concludes that a court could approve a request for the "Ashley Treatment" in appropriate and limited cases where the parents have presented clear and convincing evidence before a court that the benefits that the "Ashley Treatment" would provide to the child and her family outweigh the risks associated with the procedure. This Note argues that those benefits may include extrinsic considerations, but courts should remain cautious when considering such evidence and be sure that the evidence as a whole supports their conclusions.     

Canada's Assisted Human Reproductive Act: is it scientific censorship, or a reasoned approach to the regulation of rapidly emerging reproductive technologies?

After more than a decade of study, discussion and debate, the Canadian House of Commons and Senate have approved the Assisted Human Reproduction Act. Building on the earlier Bill C-47, which died on the order paper in 1997, the Act bans human cloning for reproductive or therapeutic purposes, payment for surrogacy arrangements, and trading in human reproductive materials or their use without informed consent. In addition, the Act significantly restricts research using human reproductive materials. This article compares the Act to legislative regimes in other nations with advanced human reproductive science. It concludes that while the Act has many laudable goals, it is flawed in that it tries to cover too much legislative ground. As a result it unreasonable impairs the ability of Canadian scientists to compete in areas such as stem cell research, and area that is expected to yield significant new approaches to treating human disease.