Missed breast cancer: the legal factors

Any reading of the relevant legal authorities confirms the special difficulties involved in the diagnosis of breast cancer. In many cases a delayed diagnosis of breast cancer is made at a time when a patient's position has become terminal. It is an easy task for lawyers and expert witnesses to determine in hindsight what should have been done at some point in the past. This article describes how the courts have dealt with this issue and comments on appropriate procedures and approaches to both protect the interests of the patient and confine liability for the medical practitioner.     

Types and Causes of lawyers' Professional Liability Claims: The Search for Facts

Lawyers have become concerned about the rising numbers and the rising amounts of professional liability claims, which have in turn driven up liability insurance premiums and temporarily even caused an alarming contraction in the supply of insurance coverage. This article examines the state of factual information that could be used to measure and explain the development. It goes on to discuss the potential role that increased knowledge of the types and causes of professional liability claims could play in efforts to reverse the development, followed by a discussion of the difficulties of obtaining usable data from the two principal potential sources—lawyers and their insurers. The second half of the article describes and evaluates the work of the American Bar Association's Special Committee on Lawyers' Professional Liability in developing, in cooperation with the major insurers, a comprehensive data collection and reporting system for lawyers' professional liability claims.     

Cost-effectiveness analysis in the courts: recent trends and future prospects

This article provides an initial look at how managed care organizations (MCOs) might incorporate cost-effectiveness analysis (CEA) into their decision-making process and how the courts might respond. Because so few medical liability cases directly involve CEA, we must look at other areas of the law to assess potential MCO liability for applying CEA. In general negligence cases, courts rely on a risk-benefit test to determine customary practice. Likewise, in product liability cases, courts use a risk-utility calculus to determine liability for product design defects. And in challenges to government regulation, courts examine how agencies use CEA to set regulatory policy. The results have been mixed. In product liability cases, CEA has led to some punitive damage awards against automobile manufacturers. But courts have integrated it in negligence cases without generating juror antipathy, and generally defer to agency expertise in how to incorporate CEA. The article discusses the implications of these cases for MCO use of CEA and outlines various options for setting the standard of care in the managed care era.     

Advocates,experts, and suspects: three images of lawyers in Chinese media reports

Research on the public image of lawyers often focuses on lawyers’ role as advocates and neglects other representations. Based on the content analysis of 669 media reports of Chinese criminal cases between 1979 and 2009, this article provides a typology of lawyers’ media images: as advocates, as experts and as suspects. Even when lawyers are characterized as defenders of suspects, media depictions of their roles are vacuous and lawyers may be considered unnecessary and dispensable. Furthermore, the characterization of lawyers in the case stories has a binary quality that is contingent upon the media's substantive judgment of case outcomes. With findings from the Chinese case, the article calls for more attention to lawyers’ images in the media, both in China and in comparative research on the legal profession.     

论医疗合同关系

医患法律关系是医事法规在调整医方与患方之间的关系中所形成的权利义务关系.其中医疗合同关系是一种不同于一般合同的特殊的民事法律关系.以民法的基本理论为依据,结合我国现实情况,力求通过对医疗合同的成立、性质、特征、主体、合同效力及其终止等方面的问题进行研究,阐明医患双方当事人各自所应承担的法律责任,归纳出更为公正、合理的解决医患纠纷的对策和理论依据,以服务于建设社会主义法治国家的需要.     

公共政策、医疗行为与责任配置——关于医疗损害责任制度绩效的观察和评论

从法政策学的角度对侵权责任的制度绩效进行观察和验证,是后侵权责任立法时期中国民法学的重要学术使命之一。本文以医疗损害责任为分析对象,竭力展示公共政策与责任配置之间的微妙关系。研究表明,现阶段公共卫生政策的实质是通过加强管制约束来提高医疗服务的质与量。在此背景下,医疗损害责任的功能定位只能是激励而非补偿;且由于医疗服务自身的特性,相关责任配置的隐性激励作用更加突出。我国现行医疗损害责任在归责原则、责任形态和损失分摊方面分别存在激励不足、不当管制和风险无关的缺陷,极有可能导致制度失灵、立法目的落空,亟需加以改进。     

Drug liability litigation: toward better dental care

Seattle attorney Ann Pearl Owen reviews the proliferation of litigation involving dental anesthesia and drug liability, ties it to trends in dentistry and pharmaceutical manufacturing, and finds a positive role for trial lawyers.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

The Proposed Framework for Environmental Strict Liability in Europe: The Polluter Pays…Possibly

On January 23, 2002, the European Union took a bold step toward developing a common approach to environmental liability, one that imposes a strict liability standard aimed at ensuring that the “polluter pays”. However, opinion is divided both on the merits of this standard and on the approach taken at the EU level. This article examines how the EU's proposal and the imposition of environmental strict liability may herald a new era for environmental experts, insurers, and lawyers across Europe.     

Limited Liability in California 1928-31: It's the Lawyers

Only in 1931 was the California Corporate Code revised to providefor limited liability. In earlier work I found that this movehad no detectable effect on shareholder wealth. In this articleI examine the potential beneficiaries of this change with aneye toward finding out who wanted this change. Using this historicalexample we can shed light on a number of issues including: (1)the economic impact of limited liability; (2) the role of lawyers,especially lawyers of high prestige, in determining the law;and (3) the competition or lack thereof among states in designingtheir corporate codes.     

Between the Scylla and Charybdis: physicians and the clash of liability standards and cost cutting goals within accountable care organizations

This article seeks to examine the conflict between non-cost-conscious medical malpractice liability standards and health care cost cutting measures within the context of Accountable Care Organizations ("ACOs") under the new health care reform law. This article begins by providing an overview of the high level of health care spending within the United States health care system in order to provide a context for better understanding policymakers' push for cost cutting measures, including ACOs. This article then examines the tension between cost containment efforts and medical liability standards through an examination of the "stuck in the middle" mentality that physicians face when they are forced to meet both liability standards that do not take into account cost concerns and cost cutting standards imposed by or through managed care organizations, pay-for-performance programs and consumer-driven healthcare. This article then introduces the concept of the ACO and describes elements of the ACOs envisioned under the new health care reform legislation. This article concludes by examining and analyzing whether and how ACOs will exacerbate the cost containment/liability standard tension, and how that tension may impact the effectiveness of ACOs.     

The New Business of Nanotechnology: Exploring Commercial Opportunities and Risks

There is an Alice-in-Wonderland awe associated with nanotechnology. While the technology is both exciting and hopeful for many good reasons, for businesses, and the lawyers who counsel them, the lack of certainty in areas involving potential risk is unsettling. The U.S. Environmental Protection Agency (EPA) is only now beginning to think through how best to apply the authority it has under the traditional environmental statutes, and to adopt regulatory programs and policies to address the potential risks and regulatory challenges nanotechnology invites. While research is progressing briskly on key hazard and exposure nanotechnology issues, much remains to be done leaving commercial applications of nanotechnology in new, unsettled waters. This article identifies some of these challenges and the non-conventional, innovative ways that lawyers, business managers, risk assessors, and others must embrace to manage risk and avoid liability effectively.     

法律援助:中国刑事诉讼制度发展的瓶颈

我国的刑事法律援助在实践中华而不实,已引起社会的广泛关注乃至严厉的批评。国务院近期出台了《法律援助条例》,试图提高法律援助的质量,但经过分析发现,其制度夙愿也许并不能转化为现实。笔者以我国当代刑事诉讼制度对律师的依赖、法律援助对诉讼制度的影响为切入点,通过揭示刑事法律援助在整个司法改革中的重要地位,进而探讨完善法律援助的思路。同时还说明,如果整个刑事辩护执业环境不改变,即使法律援助本身完善到极致,保护被告人与被害人诉讼权利的目的也无法实现。     

The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work

This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.     

论医疗损害赔偿案件的责任主体和法律适用

在借鉴法国法律规定和实践作法的基础上,探讨了我国医疗损害案件的责任主体,认为我国医疗损害赔偿案件应根据雇主责任,由医疗机构承担。同时,结合我国法律、法规和司法解释的规定,对医疗损害赔偿案件的法律适用问题进行了分析和论证。     

Boycott,Resistance and the Law: Cause Lawyering in Conflict and Authoritarianism

This article examines the role of cause lawyers in conflicted or authoritarian contexts where the chances of legal victory are often minimal. Drawing upon the literature on resistance, performance, memory studies, legal consciousness and the sociology of lawyers, the paper examines how cause lawyers challenge and subvert power. The paper first explores the tactics and strategies of cause lawyers who boycott legal proceedings and the relationship between such boycotts and broader political struggles, legitimacy and law. It then examines why and how cause lawyers engage in fairly hopeless legal struggles as acts of instrumental resistance (the ‘sand in the cogs’), transforming courts into sites of symbolic resistance, and using law as a form of memory work. The paper argues that boycott of and resistance through the courts can counter the use of law as an instrument of wickedness and a tool of denial and preserves a ‘stubborn optimism’ in the rule of law.     

Interrogating absence: the lawyer in science fiction

This article argues that whilst concepts of law and justice can be seen as prominent in much science fiction, the role of lawyer is mostly absent. This article interrogates these absences and asks whether they can be traced back to contemporary concerns around professional ethics. Three potential absences are noted; firstly, justice is considered as immanent. In these fictional futures lawyers have become unnecessary due to the immediacy of the legal system. The second conceptualisation portrays lawyers as intertwined with corporate interests. In these speculative moments lawyers have become culturally indistinguishable from other types of corporate entities. The final science fictive texts highlight a desire for the lawyer-hero. In these texts justice is overwhelmingly absent and shows a continuing need for legal professionals. Each of these cultural moments presents important questions for current understandings of professional ethics and the regulatory systems in which they are based. A removal of lawyers from our shared understandings of the future is indicative of potential problems with perceptions of professional ethics in the present.     

WHY A LAWYER?—THE IMPORTANCE OF CLIENT‐DIRECTED LEGAL REPRESENTATION FOR YOUTH

This article begins with a discussion about the importance of ensuring that all children have lawyers in abuse and neglect cases. Lawyers provide a vital role in giving youth a voice in proceedings that sound profoundly affect their lives. The article then discusses why the client‐directed lawyer's role is consistent with federal law and legal ethics. Finally, the article discusses the growing support for client‐directed representation and what the American Bar Association has done to support this type of child representation.     

Lawyers as infrastructures: mediations,blockages, and new possibilities in grassroots movements

What roles do lawyers play when their own subaltern communities are mobilizing for justice? Drawing on the case of anti-eviction mobilization on the island of Al-Warraq in Egypt, this article investigates the infrastructural roles of community lawyers in grassroots movements. As their profession transformed into an underpaid and undervalued occupation, masses of lawyers became precarious professionals living subaltern lives. Living among the poor with the elite knowledge of the law enabled community lawyers to forge new relations between the grassroots and the elites, the streets and the courtroom, and farmers and the national media. Drawing on an ethnography of the movement, I posit that community lawyers operate as social infrastructures: liminal subjects in uncertain times, capable of generating new possibilities and social relations. As social infrastructures within their communities, they shape the opportunities for action, facilitating new modes of resistance while blocking others.     

法的渊源意识的觉醒

迄今为止的法律学说在很大程度上是环绕着法的渊源展开的,法的形成和法的应用甚至以法的渊源为立命的前提性基础;然而法的渊源意识的基础和依托至今仍然殊为薄弱。奥斯汀固然奋力呼吁人们革除法和法的渊源研究方面的弊病,把法和法的渊源从散漫、驳杂和喧闹不已的“超市”中引领出来,却又失之于将其禁锢在一个狭隘的天地。奥斯汀身后的法律学人在探讨法的渊源方面亦有努力,但这种努力并未达致较为成熟的程度。实际的情形表明,如欲转变长期以来未能深究法的渊源因而总是被动地同法的渊源发生关联的情境,俾使法的渊源、法律学说和法律实践三者的融合处于和谐状况,促动法的渊源这种宝贵的资源、进路和动因在良法美制的形成方面展现上佳作用,很显然需要法律人形成自觉且科学的法的渊源意识,需要有普遍的法的渊源意识的觉醒。