Reconciling Competing Definitions of Death

When does life end?  The question has important consequences for many areas of law, from criminal law to trusts and estates to taxes.  The law has traditionally associated death with a cessation of cardiac and respiratory functioning, but advances in medical technology now mean that hearts and lungs can be kept working artificially for long periods of time.  As a result, U.S. law has generally shifted over the past half-century to a new definition of death that turns on whether there has been an irreversible loss of brain functioning.  However, as 3L Rachel Delaney explains in a new paper on SSRN, Orthodox Jews have continued to adhere to the old cardiac standard as a matter of religious law.  This creates a potential for conflict and the possibility of further emotional harm for family members at a time when they are already dealing with the loss of a loved one — for instance, if a brain-dead patient were withdrawn from life support at a time when the patient was not actually dead according  to the family’s deeply held religious beliefs.

Rachel thus argues that the law should recognize a religious exception to the brain-death standard.  Indeed, she contends that such an exception may be required by the Free Exercise Clause.

Rachel’s article is entitled “Defining Death: Why All Fifty States Should Adopt the Uniform Definition of Death Act with a Religious Exception.”  The abstract appears after the jump. 

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Gulf Oil Disaster — Lessons in Torts and Bailouts

The oil rig explosion that killed eleven workers and causes the daily flow of an estimated 200,000 gallons of oil into the Gulf of Mexico presents a gut check moment on tort policy.  A lot of harm has been and will be caused by this catastrophe, and somebody will bear the cost of that harm. Should it be the responsible parties? the victims? the taxpayers?

American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.

These uncompensated losses often hit the taxpayers as well as the victim. 

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May Day Tea Parties

Most recently, the political left accused conservatives of dumbing down the President’s health care bill. It did not usher in “socialized medicine” and did not call for “death panels.” The conservatives weren’t completely wrong. The bill – both by its provisions and by anticipated responses to what are the almost certain ways in which it will fail to achieve its intended purposes – dramatically increases and centralizes public control of health care markets including decisions on what treatments are and are not “cost effective.”

But the folks on the left also had a point. Although one cannot expect mass political movements to be marked by the dispassionate and, we hope, carefully reasoned discourse to be heard in the court room or lecture hall, supporters of the health care bill argued (with some justification) that the over the top rhetoric obscured rather than clarified. Tea parties, they said and still say, are exercises in political hysteria and ignorance in which honest differences of opinion are turned into existential conflict and ordinary political opponents are portrayed as extraordinarily evil. Mass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate. This is what they say.

Except when they don’t.

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