共查询到20条相似文献,搜索用时 15 毫秒
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N K Rhoden 《Harvard law review》1988,102(2):375-446
In cases involving the "right to die," courts are faced with the agonizing task of developing legal standards governing termination of an incompetent patient's medical treatment. In this Article, Professor Rhoden criticizes the two dominant approaches courts have developed--the "subjective" and "objective" tests--and proposes that these standards be abandoned for a legal presumption in favor of family decisionmaking. She maintains that the "subjective" test, which requires the family to provide clear proof that termination of treatment is what the incompetent would have chosen, is often unworkable because a patient's character traits, and even her prior statements about medical treatment, seldom rise to the evidentiary level that courts purport to require. Similarly, she argues that the "objective" test, which requires the family to prove that the burdens of the patient's life, measured in terms of pain and suffering, clearly and markedly outweight its benefits, dehumanizes patients by suggesting that only their present, physical sensations count. Professor Rhoden suggests that the subjective and objective tests are not nearly as distinct as courts have made them. She argues that the rigidity of these legal standards reflects courts' acceptance of the medical profession's presumption in favor of continued treatment, a presumption that places a heavy burden on families seeking to terminate treatment. Drawing on the special qualifications of families as decisionmakers in such cases, Professor Rhoden proposes that courts recognize a presumptive right of families to exercise discretion over treatment decisions. Such a standard would recognize that, although doctors and others can readily prove that terminating the treatment of a patient who can still enjoy life is wrong, it is very hard for families to meet the current standards, which essentially require them to prove that termination is right. 相似文献
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Modern capital jurisprudence places special significance on judicial instructions to guide the discretion of the capital jury in reaching a penalty phase decision. Yet, previous social science research has raised doubts about the extent to which judicial instructions are generally understood by jurors and questioned their utility in producing intended effects. The present study measured the comprehension of the capital sentencing instruction employed in California. Data suggest widespread inability to define accurately the central concepts of aggravation and mitigation in use in virtually every state that currently has a death penalty statute, as well as the inability to distinguish properly the sentencing significance of the enumerated factors jurors are directed to use in reaching their life and death verdicts. In addition, an inordinate focus on the circumstances of the crime—to the exclusion of other potentially important factors—was identified, as well as special problems in comprehending the crucial concept of mitigation in constitutionally required ways.We would like to thank Suzanne Ban, Cori Nardello, and Maryanne Tagavilla for assistance in transcribing and content-analyzing the data. 相似文献
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Kim Lane Scheppele 《Law & society review》2023,57(4):423-443
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The Honourable Mr Justice Bernard McCloskey 《Commonwealth Law Bulletin》2013,39(3):485-508
On the first anniversary of the killing of Osama Bin Laden, some reflection on the phenomenon of state-sponsored execution in an enlightened, civilised world seems appropriate. While this subject has an obvious international character, it also possesses some intriguing Irish and Northern Irish dimensions. In a wide ranging treatise, I examine how the rule of law has dealt with the death penalty at both the national and international levels, highlighting in particular the important influence of national constitutional laws in this sphere. I examine also the influence of the universally acknowledged right to life and the requirement of due process. 相似文献
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W L Schoen 《American journal of law & medicine》1990,16(4):555-580
Over the last twenty years, state legislatures have enacted statutes incorporating medically and legally established criteria to be utilized in the determination of death. Similarly consistent criteria for determining the onset of life have yet to be established. As a result, unacceptably conflicting statutory language defining life and the state's interest in that life exists. This conflict can be resolved by a functional approach that consistently applies criteria used to define the end of life to the beginning of life. 相似文献
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