For more than twenty years, Opinion 6.01 of the American Medical Association's Code of Medical Ethics has specified that “a physician's fee for medical services should be based on the value of the service provided by the physician to the patient.” In 1994, the AMA amended Opinion 6.01, adding a new statement that “a physician's fee should not be made contingent on the successful outcome of medical treatment.”We believe that the amendment is wholly indefensible. Therefore, in this essay, we argue (...) that the AMA should lift this prohibition and encourage the use of result-based compensation for medical services in appropriate circumstances.The 1994 amendment dramatically changed the significance and scope of Opinion 6.01. Result-based compensation arrangements clearly satisfy the original version of Opinion 6.01 because they base compensation on the “value of the services provided … to the patient.” Yet, it is equally clear that result-based compensation arrangements violate the amended version of Opinion 6.01 because they necessarily make compensation “contingent on the successful outcome of medical treatment.”. (shrink)

INTRODUCTION In any society relatively few disputes are brought to judges for resolution. Most are handled informally or forgotten. Fewer still are cases that go to trial. Most are settled. Compromises are reached even in cases where issues are hotly contested and where millions or billions of dollars in damages are claimed. Recently, for example, one of the most controversial lawsuits of our time, the Agent Orange case, was settled. In that case, veterans of the Vietnam War, their spouses, and (...) their children alleged that a defoliant — Agent Orange – used in Southeast Asia contained dioxin and was responsible for deaths, debilities, miscarriages, and birth defects suffered by members of the plaintiff class. Class members argued that the manufacturers of the defoliant, seven major chemical companies, knew that it was tainted and should be made to compensate them for their injuries, claiming billions of dollars in damages. The case received national exposure and became a rallying point for veterans, a means they hoped to use to publicize their plight and to spur Congress to come to their aid. On the eve of trial, the case was settled. The defendants, who denied liability throughout the pretrial period, agreed to pay the veterans $180 million. In turn, the plaintiff class agreed to drop the suit. Thus ended a controversy which not only presented novel legal issues and tested the ability of the federal courts to handle complex lawsuits, but concerned the well-being of a large number of veterans, their spouses, and their handicapped children as well. (shrink)

In his essay, “Negative and Positive Positivism,” Jules L. Coleman extends in two important ways the Legal Positivism of H. L. A. Hart. First, he shows that the “separability thesis”—the claim that no necessary or constitutive relationship exists between law and morality—to which Positivists are wedded does not entail the view, attributed by Ronald Dworkin to Legal Positivists, that law consists in “hard facts.” Instead, the separability thesis requires only the possibility of deciding the truth of propositions of law. This (...) weaker requirement can be met by rules of recognition that are semantically adequate but that fail to set out tests by means of which the legal status of rules and norms may be verified. Second, Coleman argues that one can subscribe to the separability thesis and still maintain that judges may have a legal duty to couch decisions in moral terms whenever the “content or proper formulation of [a] rule of recognition” is in dispute. Such a legal duty may exist in virtue of a convergent practice “among judges of resolving the controversy in a particular way”. (shrink)

I have argued that Legal Positivism can accommodate the existence oftheoretical disagreements in law and that Ronald Dworkin is wrongto claim otherwise. As far as Legal Positivists are concerned, evenjudges who differ over both the truth of propositions of law and thegrounds or sources of law can have a legal duty to resolve their dis-agreements on the basis of legal arguments. The duty exists whenconventional legal practice creates it. Moreover, all Anglo-Americanlegal systems impose the duty on judges because all such (...) systemscontain legal practices of the right sort: practices creating expectationsthat cases will be decided on the law even when they raise doubtsabout the content or proper formulation of a rule of recognition.Thus, Elmer's Case poses no threat to Legal Positivism. To the con-trary, it reveals the richness of that theory as few other cases can.Only if Elmer's Case is detached from the context of Anglo-American adjudication can it be said to undermine Legal Positivism.But then no theory of positive law could withstand its challenge. (shrink)