Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis

Abstract:
Under the doctrine of informed consent, physicians owe patients a duty to disclose to them all material risks of a contemplated treatment or procedure. While the doctrine is generally well accepted in the United States and several other common law countries, it has had a rockier reception in other places. This inconsistency is on its face surprising, given that the doctrine stems from the principle of patient autonomy – a principle to which most countries supposedly subscribe. Unless the patient is in possession of sufficient information, that autonomy may be compromised. But the inconsistency is less puzzling when one considers the difficulty of applying the doctrine to the actual physician-patient relationship.

This article examines the doctrine in four countries that have had different responses to informed consent: the United States; Great Britain; Canada; and Taiwan. This comparison highlights the compromises that each of these jurisdictions has made to the foundational principles of informed consent, and then proposes a way forward by borrowing heavily from the Canadian model.

Culhane, John G., Wu, King-Jean, Faparusi, Oluyomi and Juray, Eric J., Toward a Mature Doctrine of Informed Consent: Lessons from a Comparative Law Analysis (November 14, 2012). British Journal of American Legal Studies, Vol. 1, p. 551 (2012); Widener Law School Legal Studies Research Paper No. 12-37.

The Method is Dead, Long Live the Methods - European Polynomia and Pluralist Methodology

Abstract:
Globalization and Europeanization do not only produce coherence and uniformity but are flanked by differentiation and fragmentation, producing diverse and polycentric outcomes. This article puts forth reflections on European legal pluralism and a proposition for pluralist methodology. The author claims that in today’s Europe there is legal pluralism, which means that there are many over-lapping normative orders in Europe. It is claimed that Europe is fundamentally pluralistic. Hence there are overlapping non-coherent hierarchies and competing claims for normative power. This is conceptualized as polynomia. The article seeks to demonstrate that legal pluralism in the strong sense has penetrated into European legal doctrine. This state of affairs is claimed to result in a situation in which pluralism is not something that would concern legal anthropologists, legal historians or sociologist of law only. According to this article, doctrinal methods forged in the molds of legal centralism and monism are outdated and respond poorly to the present day European legal pluralism.

Husa, Jaakko, The Method is Dead, Long Live the Methods - European Polynomia and Pluralist Methodology (December 1, 2011). Legisprudence, Vol. 5, pp. 249-271, 2011 .

The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion

Abstract:
The paper has the purpose of telling the story of dissenting opinions and discusses the use of this instrument by constitutional courts in a comparative perspective. The gradual spreading of dissenting opinions all over Europe illustrates that the countries of East-Central Europe emerging from Communism, in many aspects, followed the German model of constitutional justice as a full package, without seeing it first in the details, but only enriching it with new competencies. The paper examines the 'migration' of this legal phenomenon that left England for the United States in the baggage of common law, then moved to Germany in order to take part in the reconstruction of a country destroyed by a war and an extremist ideology, that subsequently travelled to Spain, where it served to uphold and renew judicial traditions, and finally arrived in East-Central Europe to help in the building of constitutional democracy.

Kelemen, Katalin, The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion (October 2010). Paper presented at the Second Central and Eastern European Forum for Young Legal, Social and Political Theorists, organized in Budapest, 21-22 May 2010, published in P. Cserne−M. Könczöl (eds), Legal and Political Theory in the Post-National Age, Frankfurt-[etc.], Peter Lang Publ., 2011, p. 118-134.