"Give Me a Few More Minutes!": How Virginia Violates Due Process by Hitting the Snooze Button on a Timely Declaration of Death
I. Background 983 A. Defining "Death" 984 B. "Irreversibility" 986 A. Variation Among States in Determining Death 988 A. Uniform Determination of Death Act Majority Process 988 B. Virginia 's Process, and Another Outlier 990 III. Due Process 993 A. Right to Privacy 994 1. Privacy as a Fundamental Right 994 2. Privacy in Organ Donation 997 3. Compelling Interest 1000 4. Constitutionality 1001 B. Right to Die 1002 1. Death as a Fundamental Right 1002 2. Death in Organ Donation 1005 3. Compelling Interest 1009 4. Constitutionality 1011 IV. Recommendations 1011 A. Joining the Majority 1011 B. Public Policy 1012 Conclusion 1015 Stealing five minutes of extra sleep in the morning is not an unusual way for someone to begin his day. The alarm simply rings again, he gets up, carries on his routine at an accelerated pace, and is no worse for the wear. But sitting back idly while the second hand makes five slow rotations is not always so innocuous. In many instances, minutes - and even fractions thereof - are critical. One context in which snoozing is less acceptable is organ donation. Organs are sustained by the oxygen and nutrients they receive from circulating blood. When an organ donor dies and his heart stops pumping blood, doctors have mere minutes to remove his organs before they are irreparably degraded by lack of blood flow.1 With that in mind, most states have drafted their deam-determination statutes to allow for speedy organ harvesting.2 Not Virginia; Virginia hits the snooze button on organ procurement. Virginia's codification of what constitutes death is very different in one respect from most other states' death statutes.3 Though every state embraces both cardiopulmonary and neurological definitions of death, and every state respects legitimate Do Not Resuscitate (DNR) orders, Virginia has a requirement most states do not have. Virginia commands that before an individual can be declared dead, a physician must determine that artificial cardiopulmonary resuscitation (CPR) would not be successful in resuscitating the individual.4 This is the case even when the individual has a valid DNR order.5 Virginia's law has a tremendous impact on the effectiveness of harvesting organs and implicates potential donors' fundamental rights to privacy and death. Part I of this Note describes the mechanics of and laws pertaining to organ transplantation. This sets the stage for understanding why Virginia's law ought to undergo a constitutional analysis. It examines how the meaning of "death" has evolved over time and scrutinizes critical language within these definitions. These details directly impact the rate at which organs can be recovered. Part II focuses on how Virginia's death-determination criteria differ from the way in which the majority of states interpret the Uniform Determination of Death Act. Part III analyzes the constitutional implications of Virginia's law as compared to the requirements endorsed by the rest of the country. Here, the Note examines the right to privacy and how death-determination statutes affect this fundamental right. …
Law as Palimpsest: Conceptualizing Contingency in Judicial Opinions (forthcoming 2009)
Metaphors create conceptualizations, and for decades legal academics have employed metaphors to shape understandings of legal problems. But no metaphor in current use successfully conceptualizes the contingency of judicial opinions and the complexity of the relationship between opinions and precedent. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis. A palimpsest is a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: A writing on a palimpsest never goes away. This Article argues that thinking of judicial opinions as being part of a shared, ever-evolving palimpsest underscores the fact that they are ultimately contingent and serves as a reminder of the multiple levels of interconnectedness between them and the cases they cite. Precedents—like the underlayers of a palimpsest—never go away, and they inform and shape the application of opinions in ways far more significant than simply serving as points of reference. A palimpsestic approach to understanding judicial decisionmaking also helps to explain why even the oldest, most reviled cases remain part of our national psyche—like underlayers of a palimpsest, they can never truly disappear, and their continued presence forces us to grapple with their existence. Finally, considering judicial opinions as part of a shared palimpsest reminds us that even the most troubling opinion is ultimately contingent, its application subject to reexamination and revision by future courts and future generations. Just as such an opinion replaces its precedents, it too will one day be replaced, like each of a palimpsest’s layers. 2 Law as Palimpsest [Vol. __:__ Law as Palimpsest: Conceptualizing Contingency in Judicial Opinions
Clinical Intestinal Transplantation: A Decade of Experience at a Single Center
ObjectiveTo assess the long-term efficacy of intestinal transplantation under tacrolimus-based immunosuppression and the therapeutic benefit of newly developed adjunct immunosuppressants and management strategies. Summary Background DataWith the advent of tacrolimus in 1990, transplantation of the intestine began to emerge as therapy for intestinal failure. However, a high risk of rejection, with the consequent need for acute and chronic high-dose immunosuppression, has inhibited its widespread application. MethodsDuring an 11-year period, divided into two segments by a 1-year moratorium in 1994, 155 patients received 165 intestinal allografts under immunosuppression based on tacrolimus and prednisone: 65 intestine alone, 75 liver and intestine, and 25 multivisceral. For the transplantations since the moratorium (n = 99), an adjunct immunosuppressant (cyclophos-phamide or daclizumab) was used for 74 transplantations, adjunct donor bone marrow was given in 39, and the intestine of 11 allografts was irradiated with a single dose of 750 cGy. ResultsThe actuarial survival rate for the total population was 75% at 1 year, 54% at 5 years, and 42% at 10 years. Recipients of liver plus intestine had the best long-term prognosis and the lowest risk of graft loss from rejection (P = .001). Since 1994, survival rates have improved. Techniques for early detection of Epstein-Barr and cytomegaloviral infections, bone marrow augmentation, the adjunct use of the interleukin-2 antagonist daclizumab, and most recently allograft irradiation may have contributed to the better results. ConclusionThe survival rates after intestinal transplantation have cumulatively improved during the past decade. With the management strategies currently under evaluation, intestinal transplant procedures have the potential to become the standard of care for patients with end-stage intestinal failure.