Deinstitutionalization from state mental hospitals was largely over by 1980, but the percentage of prisoners with mental illness did not begin to skyrocket until 1990. The leading theories for the criminalization of mental illness cannot fully explain this gap. This Essay offers a new theory: the Supreme Court in 1990 reduced the costs of incarcerating the severely mentally ill by approving the cheap and easy forced medication of prisoners. We show that this theory is supported by timeseries and cross-sectional data. Our theory has implications beyond simply raising the bar for forcible medication standards in the prison context. Prison reform litigation increases the costs of incarceration and puts pressure on states to decriminalize mental illness. A second deinstitutionalization may be coming.

In a substantial majority of states, invitees may bring concealed weapons onto private property unless the owner expressly tells them that firearms are not allowed. After the Supreme Court's Bruen decision, five states flipped the presumption, enacting statutes that prohibit bringing firearms onto other people's property without the owner's express consent. These statutes have been attacked as violating the Second Amendment. While the Ninth Circuit upheld the constitutionality of the "no-carry" default, the Second Circuit and other lower courts have enjoined application of the law with regard to private property open to the public. This article, after analysing the reasoning of the courts, proposes a legislative fix. States can enact "affirmative choice" rules which require commercial establishments, as a condition of doing business, to state whether or not they want their customers to be allowed to bring concealed firearms into their stores. An affirmative-choice requirement avoids constitutional concerns that some courts have had with a "no-carry" presumption because the ability to bear arms on private property would be restricted only when the landowner affirmatively so chooses. Without state action restricting gun rights, the statutes would not meet the Bruen threshold requirement to trigger Second Amendment scrutiny. The article explains why affirmative-choice laws are likely to better effectuate the preferences of landowners and why such laws would not pose compelled speech concerns.

Elmer Palmer murdered his grandfather. The undisputed motive was money. The grandfather’s will included a large gift to Elmer, which the grandfather was poised to eliminate. Elmer acted first. Under the law at the time, Elmer would inherit despite having intentionally killed his grandfather: the existing will controlled. Unfortunately for Elmer, the New York Court of Appeals announced a new equitable principle: Murderers cannot inherit from their victims. Since this famous decision in 1889, some version of the “slayer rule” has been adopted by nearly every state and lauded by nearly every commentator. Still, important questions about the proper scope of the slayer rule remain unanswered. Case law and scholarship identify multiple rationales for the slayer rule, which push in different directions in difficult applications. This study is the first to empirically test key assumptions underlying the slayer rule. Over a thousand survey respondents answered the question “What’s fair?” or “What would the decedent want?” in twelve different scenarios. Some of the most significant conclusions are that the slayer rule should not apply to assisted suicide, killings in self-defense, or killings due to mental illness. On the other hand, the slayer rule should be expanded beyond murder in some circumstances, such as elder abuse and neglect. And the slayer rule should be converted from a mandatory rule into a default rule, which testators could opt out of in their wills. Carefully probing what people think about the slayer rule illuminates its many aspects and points toward needed reforms.

LettersJuly 2021Older Firearm Owners and Advance PlanningFREEFredrick E. Vars, JDFredrick E. Vars, JDUniversity of Alabama School of Law, Birmingham, AlabamaSearch for more papers by this authorAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/L21-0246 SectionsAboutVisual AbstractPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail TO THE EDITOR: Betz and colleagues' (1) brief research report notes that approximately one fifth of older firearm owners in a nationally representative survey had a plan for securing or transferring firearms if they became unable to handle them safely. Only 5.6% of those plans were written. As the authors correctly observe, the survey “highlights opportunities for enhanced future planning related to firearms.” However, what form can and should such advance planning take? Here, I offer 3 proposals.The first proposal is to encourage more and better use of an existing legal instrument: the gun trust. The survey results suggest an untapped demand for this option; 16.1% of respondents had a plan, but it was not in writing. A gun trust is a commonly used vehicle to control disposition of firearms and, with very minor modification, could turn these unwritten plans into legally binding arrangements (2). Health care providers could suggest this option to patients with such conditions as early stage dementia.The second proposal—enacting a statute to authorize a streamlined advance directive for firearms—requires a legal change (3). This could make the benefits of a gun trust more readily accessible. A section on firearms could even be added to existing advance directive forms. Again, the survey results suggest the potential of such a change, showing that 64.1% of respondents had written advance directives for health care.The final and most important proposal is to use innovative laws in 3 states to close the following major loophole in advance firearm planning: Even if firearms are secured or transferred away from an unsafe owner, little stops that person from simply buying a new gun (4). However, Washington state, Virginia, and Utah offer everyone the option to add their name to a Voluntary Do-Not-Sell List that would prevent future gun purchases (5). This list is an underappreciated form of advance firearm planning and not just for gun owners. Those who have chosen not to own guns for such reasons as fear of suicide can solidify that choice.References1. Betz ME, Miller M, Matlock DD, et al. Older firearm owners and advance planning: results of a national survey [Letter]. Ann Intern Med. 2021;174:279-82. [PMID: 33017563]. doi:10.7326/M20-2280 LinkGoogle Scholar2. Vars FE, Ayres I. Gun trust as private red flag law. Probate & Property. 2020;34. Google Scholar3. Ayres I, Vars FE. Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights. Harvard Univ Pr; 2020. Google Scholar4. Betz ME, McCourt AD, Vernick JS, et al. Firearms and dementia: clinical considerations. Ann Intern Med. 2018;169:47-9. [PMID: 29801058]. doi:10.7326/M18-0140 LinkGoogle Scholar5. Vars FE. Voluntary do-not-sell lists—an innovative approach to reducing gun suicides. N Engl J Med. 2020;383:1299-301. [PMID: 32997906] doi:10.1056/NEJMp2011339 CrossrefMedlineGoogle Scholar Comments0 CommentsSign In to Submit A Comment Author, Article, and Disclosure InformationAffiliations: University of Alabama School of Law, Birmingham, AlabamaDisclosures: The author has reported no disclosures of interest. The form can be viewed at www.acponline.org/authors/icmje/ConflictOfInterestForms.do?msNum=L21-0246. PreviousarticleNextarticle Advertisement FiguresReferencesRelatedDetailsSee AlsoOlder Firearm Owners and Advance Planning: Results of a National Survey Marian E. Betz , Matthew Miller , Daniel D. Matlock , Garen J. Wintemute , Rachel L. Johnson , Conor Grogan , Hillary D. Lum , Christopher E. Knoepke , Megan L. Ranney , Krithika Suresh , and Deborah Azrael Metrics July 2021Volume 174, Issue 7Page: 1038-1039KeywordsAgingCaregiversDementiaDisclosureElderlyFire safetyFirearm injuriesForecastingMotivationStatistical data ePublished: 20 July 2021 Issue Published: July 2021 Copyright & PermissionsCopyright © 2021 by American College of Physicians. All Rights Reserved.PDF downloadLoading ...

While infections, hospitalizations, and deaths from the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) pandemic overshadowed nearly all other health issues in the US in 2020, the problem of firearm injuries and deaths has continued unabated. Indeed, firearm sales increased during the pandemic, driven in part by a perceived need for self-protection amid concerns of breakdown in law and order. The latest reports from the Centers for Disease Control and Prevention indicate that more than 39 000 people died from firearm injuries in the US in 2018, including 24,432 by gun suicide. While a new administration is likely to devote more attention to firearm-related deaths and injuries, there are limits to what policies could be implemented at the federal level given the makeup of the new Congress and the Supreme Court. Over the last 3 decades, changes in policies related to firearms have occurred at the state rather than the federal level. Laws and community efforts have generally moved away from the idea of state-imposed "gun control" and toward voluntary or mandatory restrictions on who has access to firearms at a particular point in time. This Viewpoint describes 3 interventions that may reduce gun violence and, importantly, have been supported by individuals across the political spectrum: mapping locations to temporarily store firearms during crises, voluntary do-not-sell lists, and extreme risk protection orders (ERPOs). These interventions could potentially allow physicians and other clinicians to meaningfully decrease the risk of firearm-related injury and death to their patients.

This article tests the impact of Walmart's corporate decisions to end the sale of handguns at its stores in 1994 and to discontinue the sale of all firearms at approximately 59% of its stores in 2006 before resuming firearms sales at some of those stores in 2011. Using a difference-in-differences framework, we find that that from 1994 to 2005 counties with Walmarts robustly experienced a reduction in the suicide rate and experienced no change in the homicide rate. These models suggest that Walmart's policy change caused a 3.3 to 7.5% reduction in the suicide rate within affected counties, which represents an estimated 5,104 to 11,970 lives saved over the studied period (425-998 per year). In contrast, Walmart's 2006 and 2011 decisions to discontinue and subsequently resume the sale of rifles and shotguns in many of its stores was not associated with a robustly measured effect on homicide or suicide rates. We do find evidence that Walmart's 2006 decision to reduce the number of its stores that sold firearms caused a statistically significant reduction in the suicide rate for counties in which Walmart did not subsequently resume firearms sales.

Donna’s Law would allow individuals who fear suicide to prevent their own impulsive gun purchases. Research shows that many people would sign up, and versions of Donna’s Law have passed in Washington State and Virginia. This study is the first to assess public support for enacting Donna’s Law. We find broad support overall, including majority support among Republicans and gun owners. There is room for consensus around this voluntary measure to reduce gun suicide.

Virginia recently joined Washington State in deciding to allow people to confidentially put their own names into the federal firearm background-check system to prevent future gun purchases. Voluntary do-not-sell programs could prevent a substantial number of suicides.

This article analyzes the determinants of citations to pieces published from 1980 to 1995 in Harvard Law Review, Stanford Law Review, and The Yale Law Journal. We also rank articles by number of citations using regressions controlling for time since publication, journal, and subject area. To summarize a few of our results: citations per year peak at 4 years after publication, and an article receives half of its expected total lifetime citations after 4.6 years; appearing first in an issue is a significant advantage; international law articles receive fewer citations; jurisprudence articles are cited more often; articles by young, female, or minority authors are more heavily cited. Articles with shorter titles, fewer footnotes per page, and without equations have significantly more citations than other articles. Total citations generally increase with an article's length, but citations per published page peak at 53 pages.

Mental illness is not a crime. That fundamental proposition is threatened by the Supreme Court’s recent decision in Kahler v. Kansas, which allows states to abolish the insanity defense. This Essay presents three examples of absurd and discriminatory results that could follow. But the conclusion is a positive one: constitutional constraints not considered in Kahler—the Equal Protection Clause and the Eighth Amendment—should prevent the worst results from materializing.

Executing an advance directive that specifies a patient's wishes regarding end-of-life medical care is an exercise of self-determination--a conscious choice about the degree and type of medical intervention one wishes to receive under end-of-life circumstances. Empirical studies, however, consistently report that healthcare professionals fail to comply with advance directives; violations of a patient's interest in self-determination are alarmingly common. From a practical perspective, the conduct of either patients or healthcare professionals may make an advance directive unavailable, which results in noncompliance. Legally, courts have historically rejected claims for "wrongful living" associated with the prolongation of life that results from unwanted medical intervention. As a result, healthcare professionals fear the liability threatened by a wrongful death claim more than the legal exposure risked by keeping an individual alive despite a contrary mandate in an advance directive.In response to practical concerns regarding availability, this Article proposes the creation of a nationwide registry of advance directives and argues that sanctions for violations of professional responsibility as well as the risk of liability for legal malpractice encourage utilization of the proposed registry. To realign the skewed legal incentives, this Article argues that the compensable harms associated with battery and negligence claims filed in lieu of "wrongful living" claims should include the loss of enjoyment of life. Because damages for loss of enjoyment of life are rarely mentioned by courts or scholars in the context of violating advance directives, this Article describes loss of enjoyment of life damages and argues that such damages should be compensable in the same manner that tort law compensates for similar injuries that lack an objective market value. In combination, the practical and legal proposals incentivize compliance with an advance directive and thereby expand the protection afforded a patient's interest in self-determination.

Individuals should have the option to waive their Second Amendment rights to keep and bear arms by adding their names to the National Instant Criminal Background Check System. Every year, over 20,000 Americans kill themselves with firearms. We present a low-cost and constitutional system that could, in just a few years, easily save thousands of lives as people with mental health or other recurring problems, during moments of clarity, rationally opt to restrain their future selves. Moreover, our system, which includes the option of providing email notifications of an individual's waiver to third parties, can promote a marketplace of informed association. Just as Heller emphasizes the Second Amendment right to keep and bear arms as furthering the "core" individual right to self-defense, credibly communicated waiver of Second Amendment rights can facilitate the self-defense choices of individuals to limit association with those who may possess weapons. Forcing Second Amendment interests to contend with First Amendment associational interests can thus enhance the joint liberty of those seeking to best defend themselves. We provide the results of two surveys showing that close to a third of the general population and more than forty percent of those with previously diagnosed mental health concerns indicated that they would be willing to add their name to a "No Guns" list.

This Article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists-the very defendants who would seem best able to prevent suicide. Using a fifty-state panel regression for 1981 to 2013, we find that states which allowed psychiatrists (but not other doctors) to be liable for malpractice resulting in suicide experienced a 9.3% increase in suicides. On the other hand, and more intuitively, holding non-psychiatrist doctors liable decreases suicide by 10.7%. These countervailing effects can be explained by psychiatrists facing liability choosing not to work with patients at high risk for suicide, whereas other doctors do not have that ability and instead avoid liability by providing better care. The Article makes important contributions to the law of proximate cause and to the more general phenomenon of regulatory avoidance. Traditionally, one could not be liable for malpractice that caused another's suicide-the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse effect. Accordingly, this Article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.

We exploit within-state variation across time in both the existence and length of statutory delays both explicit wait periods and delays created by licensing requirements - between the purchase and delivery of a firearm to examine the effect of purchase delays on homicides and suicides. We find that the existence of a purchase delay reduces firearm-related suicides by between 2% and 5% with no statistically significant increase in non-firearm suicides. Purchase delays are not associated with statistically significant changes in homicide rates.

Both sides of the contentious debate over firearm regulation agree that some people with mental illness should be prohibited from purchasing firearms. This consensus exists despite limited empirical support. Such support will be essential to courts deciding the prohibition’s constitutionality. We assess the impact on homicide and suicide of states reporting mental health records to the national firearm background check system. Using panel data and a difference-in-differences methodology, we find that upon adding mental health records to the national system, states experienced a 3.3-4.3% decrease in firearm-related suicides with no evidence of substitution to non-firearm suicides. Our findings suggest that mental health restrictions on gun sales do effectively reduce suicide but not homicide.

The study goal was to determine whether a significant number of high suicide risk individuals would confidentially put their own names onto a list to prevent future gun purchases. An anonymous written survey was administered in an inpatient psychiatric unit and two outpatient psychiatric clinics at an academic medical center. Two hundred forty individuals were approached to fill out the survey, of whom 200 (83.3%) did so. Forty-six percent of participants stated that they would put their own name onto the list. This novel suicide prevention proposal, a Do-Not-Sell List, would appeal to many people at high risk for suicide.

The Supreme Court yesterday (April 24, 2017) heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.