Copyright (c) 2010 All rights reserved. http://works.bepress.com/kristen_nugent Recent documents in Kristen Nugent en-us Sun, 26 Sep 2010 07:48:00 PDT 3600 http://works.bepress.com/kristen_nugent/7 http://works.bepress.com/kristen_nugent/7 Tue, 27 Jul 2010 07:58:28 PDT Kristen M. Nugent Criminal Law and Procedure Mental Health Law & Policy http://works.bepress.com/kristen_nugent/6 http://works.bepress.com/kristen_nugent/6 Tue, 27 Jul 2010 07:56:12 PDT Kristen M. Nugent Criminal Law and Procedure Mental Health Law & Policy http://works.bepress.com/kristen_nugent/5 http://works.bepress.com/kristen_nugent/5 Wed, 13 Jan 2010 08:55:35 PST This unpublished paper is the extended first draft of an article that will appear in a substantially condensed, peer-reviewed, and heavily edited (with respect to length and certain changes in focus) version in Developments in Mental Health Law in 2010 (forthcoming). Scholars interested in this topic should also see the DMHL article, as, notwithstanding the similar titles, the two pieces contain significantly different content. This unpublished paper contains additional information for those who are interested in a more expansive examination of the topic, but the DMHL article may be superior for purposes of citation, as it benefits from the peer-review and editorial process. Kristen M. Nugent Health Law & Policy Mental Health Law & Policy http://works.bepress.com/kristen_nugent/4 http://works.bepress.com/kristen_nugent/4 Mon, 27 Apr 2009 12:56:10 PDT Kristen M. Nugent Criminal Law and Procedure Constitutional Law Mental Health Law & Policy http://works.bepress.com/kristen_nugent/3 http://works.bepress.com/kristen_nugent/3 Tue, 14 Apr 2009 13:13:45 PDT The issue of cosmetic surgery performed on patients with body dysmorphic disorder (“BDD”), a form of mental illness in which sufferers experience great distress and preoccupation with imagined or exaggerated physical flaws, exists at the intersection of the medical, legal, and psychiatric fields. The perspectives and professional judgments of practitioners and scholars in all three sectors will inevitably conflict, as members of each group—in good faith, and based on their respective training, experience, and varying levels of risk aversion—try to formulate policies and procedures for determining whether and when BDD is a contraindication to cosmetic surgery. Where there is disagreement as to under what conditions and with what precautions a plastic surgeon may safely perform an elective procedure on an individual with BDD, the potential for legal liability is more likely to arise. Unsurprisingly, each group also has a differing opinion as to the best manner to deal with recalcitrant physicians who negligently or knowingly ignore professional, legal, and ethical norms and standards, and operate on inappropriate surgical candidates who suffer from BDD. This article examines psychiatric research, medical practices, and legal precedent in an effort to uncover a compromise position that will satisfy the interests and address the concerns of the members of all three fields. This article emphasizes, however, that balancing the patient’s interests in both bodily autonomy and protection from unscrupulous doctors must remain the foremost priority. Kristen M. Nugent Health Law & Policy Mental Health Law & Policy http://works.bepress.com/kristen_nugent/2 http://works.bepress.com/kristen_nugent/2 Tue, 14 Apr 2009 12:49:36 PDT This article explores whether the current patent system strikes the optimal balance between providing incentives to inventors to bring new medical devices to the marketplace and promoting public health by ensuring that these medical devices are widely available at a reasonable price. After providing an overview of the relationship of patent law to medical devices, the author explains how ethical and economic considerations suggest the need for an alternative patent system for medical devices and notes the difficulties with this proposal. The author concludes that a combination of alternatives to the current system most equitably account for the interests and needs of both healthcare device consumers and producers. Kristen M. Nugent Health Law & Policy Patent Law & Policy http://works.bepress.com/kristen_nugent/1 http://works.bepress.com/kristen_nugent/1 Sat, 27 Dec 2008 07:17:13 PST Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects the constitutional flaws inhering in Georgia’s current system of capital punishment, with a particular focus on the failures of the mandatory state Supreme Court proportionality review. The article thus begins with an assessment of Georgia’s capital sentencing scheme, arguing that the language of the relevant statutes renders the system susceptible to inequities among defendants and abuses of discretion by state officials. Notably, the state Supreme Court’s automatic review of all death sentences, instituted as a means of restraining overbroad judicial, juror, and prosecutorial application of vague statutory text, has failed to provide any meaningful check on the systemic arbitrariness and unfairness of death penalty decisionmaking. This point is elaborated in the second section of the article, which focuses on potential Eighth Amendment challenges to the practical application of Georgia’s death penalty laws, contending that to the extent that the Georgia Supreme Court persists in providing only a cursory rendition of its proportionality review obligation, the entire institution of capital punishment within the state is unconstitutionally cruel and unusual punishment. The third and final segment of the article explores an alternative but related set of challenges to Georgia’s death penalty procedures, demonstrating how the U.S. Supreme Court has failed to fully attend to the Fourteenth Amendment equal protection argument that Georgia’s death penalty statute, as applied, has fostered opportunities for impermissible considerations, including race-based biases (implicit or otherwise), to infiltrate the various stages of criminal proceedings, thus exposing capital defendants to a heightened risk that their sentence will be based on reasons irrelevant to their culpability. The article thus concludes that Georgia’s procedures neither shield death row defendants from arbitrary and disproportionate sentencing in violation of the Cruel and Unusual Punishment Clause, nor rectify the effects of institutionalized racism and individual prosecutorial biases in violation of the Equal Protection Clause. Kristen M. Nugent Criminal Law and Procedure Constitutional Law