Federal administrative health courts are unconstitutional: a reply to Elliott, Narayan, and Nasmith

This commentary responds to the essay by Elliott, Narayan, and Nasmith wherein they propose that the federal government may preclude plaintiffs with medically inflicted injuries from bringing state common-law tort claims against those whose negligence caused their injury. The administrative system championed by Elliott and other proponents is a radical departure from the current civil justice system. Specifically, we argue that the administrative health courts, as proposed, violate the commerce clause, the spending clause, the Seventh Amendment, and separation of powers principles. The commentary concludes that such a system is fatally flawed and cannot withstand constitutional scrutiny. Moreover, we are not persuaded that Congress will be able to ground such a radical constitutional restructuring in any sound public policy, as the majority of studies do not evidence Elliott, Narayan, and Nasmith's presumption that the civil justice system has failed in the medical malpractice context.     

A provisional typology of lawyer attitudes towards divorce practice

To test the proposition that attorneys in divorce may be classified into distinctive types, 46 members of the Family Law Section of the New Jersey State Bar Association completed a 61 item Lawyer Role Questionnaire (LRQ). The LRQ assessed attitudes regarding goals of and obstacles to a constructive settlement, sources of professional satisfaction, usefulness of mental health professionals, and general attitudes towards divorce and divorce clients. The modal responses on the LRQ portrayed the attorney as a fair, but tough-minded professional, primarily concerned with the welfare of children and ensuring equity. Factor analysis identified four principal attitudinal components of the LRQ: aPsychological factor, anAdvocacy factor, aSocial Work factor, and aClient as Problem factor. Hierachial cluster analysis utilizing the mean factor scores yielded two highly distinguishable attorney subgroups:Counselors (n=24), oriented to psychological and interpersonal issues and disinclined towards the use of adversarial tactics, andAdvocates (n=22), with the reverse orientation. Two subclusters of these main groups were also identified:Gladiators (n=4), with a strongly combatative stance and a highly negative attitude toward the client, andJourneymen (n=10), best characterized by their lack of enthusiasm for any of the dimensions popular with the other types. The results correspond well to the previous, but scanty, literature on lawyer dispositions. Methodological and conceptual issues raised by the study are considered and the possible relationship between lawyer type and the process and outcome of settlement negotiations is discussed.An earlier version of this paper was presented at the meeting of the American Psychology-Law Society, Baltimore, Maryland, October, 1979.