scholarly journals Informed consent to clinical research in India: A private law remedy

2020 ◽  
Vol 20 (3) ◽  
pp. 256-283
Author(s):  
Himani Bhakuni
Keyword(s):  
United States ◽  
Informed Consent ◽  
Clinical Research ◽  
Information Disclosure ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Private Law ◽  
Patient Relationship ◽  
Treatment Context

There is a well-established common law doctrine for ascertaining information disclosure in informed consent claims within the treatment context that governs the doctor–patient relationship. But there is no such doctrine in clinical research governing the researcher–participant relationship in India. India, however, is not exceptional in this regard. Common law countries like the United States and Canada at most have sparse, non-systematised, criteria for such cases; arguably, a doctrine for research is at its nascent stage. But the adequacy of the existing criteria for settling informed consent claims in research has hardly ever been discussed. Furthermore, a specific discussion on the applicability of this ‘nascent doctrine’ to India is non-existent. This article discusses both. The article examines case law from India and other common law jurisdictions that hint at developments in this area. It suggests that Indian courts need to move abreast with other jurisdictions to better protect India’s patients and research participants.

Principles of Internet contracting: Illuminating the shadows

2019 ◽  
Vol 48 (4) ◽  
pp. 208-232
Author(s):  
Caterina Gardiner
Keyword(s):  
United States ◽  
United Kingdom ◽  
Consumer Protection ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Contract Law ◽  
Contract Formation ◽  
The Common ◽  
The Relationship

The common law that applies to Internet contract formation could be said to exist in a penumbra—a grey area of partial illumination between darkness and light—where it may be possible to lose sight of established contract law principles. Internet contracts raise difficult issues relating to their formation that challenge traditional contract doctrine. Analysis of case law from the United States, United Kingdom and Ireland illustrates that the courts have not applied contract formation doctrine in a principled or consistent way. There is a tendency for decisions to be reached for policy reasons, for example, to facilitate the development of e-commerce, or to achieve a result that is considered fair, rather than on sound principles of contract law. There may also be some uncertainty arising from the relationship between statutory consumer protection rules and common law contract formation doctrine. The enforceability of Internet contracts in the common law courts remains unpredictable. This article argues that although Internet contracting may raise distinctive contract formation issues, it is possible for the judiciary to invoke the inherent flexibility of the common law, to take into account the specific characteristics of Internet contracts, while still adhering to established contract law doctrine and maintaining a principled approach.

scholarly journals The regulation of informed consent to participation in clinical research by mentally ill persons: An overview

2010 ◽  
Vol 16 (4) ◽  
pp. 6
Author(s):  
A Nienaber
Keyword(s):  
Informed Consent ◽  
Clinical Research ◽  
South African ◽  
Mentally Ill ◽  
Common Law ◽  
Case Law ◽  
Legal Requirements ◽  
Mentally Ill Persons ◽  
South African Constitution ◽  
National Health Act

The article examines the legal requirements relating to the informed consent of mentally ill persons to participation in clinical research in South Africa. First, the juridical basis of informed consent in South African law is outlined; and second, the requirements for lawful consent developed in South African common law and case law are presented. Finally, the article deliberates upon the requirements for the participation of mentally ill persons in research as laid down by the Mental Health Care Act and its regulations, the National Health Act and its (draft) regulations, and the South African Constitution.

The Oxford Handbook of the New Private Law

2020 ◽  
Keyword(s):  
United States ◽  
Intellectual Property ◽  
Policy Evaluation ◽  
Common Law ◽  
The United States ◽  
Private Law ◽  
Commercial Law ◽  
Interdisciplinary Perspective ◽  
Broad Domain

This book discusses developments in scholarship dedicated to reinvigorating the study of the broad domain of private law. This field, which embraces the traditional common law subjects “property, contracts, and torts” as well as adjacent, more statutory areas, such as intellectual property and commercial law, also includes important subjects that have been neglected in the United States but are beginning to make a comeback. The book particularly focuses on the New Private Law, an approach that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law’s various features fit and work together, as well as the normative underpinnings of these larger structures. This movement is resuscitating the notion of private law itself in United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The book embraces a broad range of perspectives to private law “including philosophical, economic, historical, and psychological” yet it offers a unifying theme of seriousness about the structure and content of private law.

scholarly journals The Invention of Common Law Play Right

2017 ◽  
Author(s):  
Jessica Litman
Keyword(s):  
United States ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Property Right ◽  
Public Performance ◽  
Dramatic Works ◽  
History Of ◽  
The Common ◽  
Theatrical Practice

In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in the United States, the first claims of a common law right to control public performances appeared only after Congress enacted a statutory dramatic public performance right in 1856. Courts and lawyers developed a common law literary property right to control public performances in order to permit the proprietors of dramatic works to recover even though there were formal defects in their U.S. copyright registrations. Eaton Drone then used those cases as a basis for embroidering a full-blown common law literary property right purportedly based in natural law. Courts adopted Drone’s version of common law play right and followed it for the next thirty years. (The breadth of the common law claim, however, made little difference to actual playwrights, who were deemed to have assigned their common law rights to the producers of their plays.) This history suggests that the rights that we perceive as inherent or natural are fundamentally contingent on what rights already have names and a path to enforcement.

Informed Consent: Physician Inexperience is a Material Risk for Patients

2007 ◽  
Vol 35 (3) ◽  
pp. 478-485 ◽  
Author(s):  
Richard J. Veerapen
Keyword(s):  
United States ◽  
Decision Making ◽  
Informed Consent ◽  
Information Disclosure ◽  
Patient Autonomy ◽  
Medical Decision Making ◽  
The United States ◽  
Positive Influence ◽  
Medical Decision ◽  
Canadian Law

The Canadian law governing informed consent was significantly influenced by the decision of its Supreme Court in Reibl v. Hughes, a case that involved a physician’s failure to warn the patient about the risk of stroke after carotid endarterectomy. Even though most Canadian plaintiffs after Reibl have continued to lose informed consent cases, it is likely that the judgement in this case has significantly influenced the manner in which physicians now approach the discussion of risk while obtaining consent not only in Canada but also in several other jurisdictions.The development of informed consent law in the United States similarly became one of the drivers for change in physicians’ practices of information disclosure to their patients. The effect of Reibl on clinical practice is an outstanding example of the law’s positive influence on medical practice, especially in protecting patient autonomy during collaborative medical decision-making.

Thinking About Scots Law

1996 ◽  
Vol 1 (1) ◽  
pp. 3-24 ◽  
Author(s):  
Alan Rodger
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
British Empire ◽  
United States Of America ◽  
Case Law ◽  
The United States ◽  
Memorial Lecture ◽  
University Of Edinburgh ◽  
The University

This article is the revised text of the first W A Wilson Memorial Lecture, given in the Playfair Library, Old College, in the University of Edinburgh, on 17 May 1995. It considers various visions of Scots law as a whole, arguing that it is now a system based as much upon case law and precedent as upon principle, and that its departure from the Civilian tradition in the nineteenth century was part of a general European trend. An additional factor shaping the attitudes of Scots lawyers from the later nineteenth century on was a tendency to see themselves as part of a larger Englishspeaking family of lawyers within the British Empire and the United States of America.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

Denial of Health Care and Informed Consent in English and American Law

1992 ◽  
Vol 18 (1-2) ◽  
pp. 37-71
Author(s):  
Frances H. Miller
Keyword(s):  
United States ◽  
Health Care ◽  
Informed Consent ◽  
The United States ◽  
Health Care Rationing ◽  
Legal Obligation ◽  
The United Kingdom ◽  
American Law ◽  
Care Rationing ◽  
Increased Pressure

Health care rationing has gained greater visibility in the United States and the United Kingdom, for quite different reasons. As patients in both countries become more aware that potentially beneficial medical services can be denied them on economic — as opposed to purely medical — grounds, they are beginning to seek help from the judiciary. This Article contends that as rationing becomes more explicit, the doctrine of informed consent will come under increased pressure. The Article suggests that courts and legislatures consider imposing a legal obligation on physicians to inform their patients when potentially effective treatment is to be withheld for economic or other non-clinical reasons.

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