This article examines laws that allow people to decide what will happen to their bodies after death, referred to as laws protecting posthumous bodily integrity. It asks whose rights they intend to protect: the rights-holders could consist only of living individuals whose bodies will become the corpses at issue or could include the dead themselves. Whether rights to posthumous bodily integrity belong only to the living or survive death leads to three types of insight. First, the reasons for protecting posthumous bodily integrity are different depending on who the rights-bearers are. Second, to the extent that some laws are more consistent with an approach that views the dead as rights-holders versus only the living (or vice versa), this may help elucidate why we protect posthumous bodily integrity. Third, if one has an opinion about whether the dead are capable of having rights, this has implications for how one thinks laws protecting posthumous bodily integrity should be structured. For example, the article proposes a revision to anatomical gift legislation that is more easily justified than current legislation if one views the dead as incapable of having rights.
Negligence liability has failed to keep up with the changing divisions of labor between physicians and pharmacists. Based on factual assumptions regarding the relative competencies and responsibilities of these health professionals, the courts have shouldered physicians with the greatest treatment responsibility and have accordingly relegated pharmacists to the role of pill counters except in especially serious circumstances. These rules now exist alongside an emerging health care industry standard in which pharmacists command greater expertise of drugs than doctors do and in which doctors have taken on too many duties in light of their own competencies. Many commentators have advocated for greater collaboration between physicians and pharmacists in light of these issues, and such change is coming. To account for these changes and keep malpractice liability current, the courts should do away with many of the doctrinal limits on these professionals’ tort duties and instead adopt an overall reasonableness test.
When Ms. F. first arrived in your office, accompanied by her niece, she was elderly (eighty-two), frail, and a little confused, but still able to coherently relate to you the events that had brought her to your office. A lonely widow, with no close relatives, she had become enamored with a fifty-year-old handyman who offered to repair her bathroom fixtures without charge. A few months later, the helpful handyman moved in with the widow, despite the fact that he was already married to a woman his own age--a fact he did not disclose to Ms. F. Soon, the helpful handyman’s name was listed beside hers on all of her bank accounts, and he was the one writing all of the checks, most of which were payable to cash or to himself. Finally, when the money in the bank accounts ran out, the helpful handyman took Ms. F. to see a friendly real estate investment company, telling Ms. F. that she needed to take out loans against her rental properties and then, several months later, her home. The “loans” turned out to be purchases (at discount prices) of each property, with the investment company representative stating that he had been told by the handyman that Ms. F. needed money to pay bills. The helpful handyman then cashed the proceeds checks from these sales and disappeared, leaving Ms. F. alone to face the action for eviction brought by the friendly real estate investment company. You file suit in a court of equity to enjoin the eviction and seeking rescission of these transactions; you are successful in keeping Ms. F. in her home during the ensuing two- year pendency of the proceedings.
